Appendix — Brotherhood of Locomotive Firemen & Enginemen v. Bangor & Aroostook Railroad

Supreme Court brief1968

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APPENDIX A

OPINION '

Francie M. Shea and Richard T. Coney, both of Wash-

ington, D. C., for the plaintiffs in Action No. 777-66; and

‘for. the defendants in Action No. 784-66. —

Joseph L. Rauh, Jr. and Isaac N. Groner, both of Wash-

ington, D. C,, for the defendant in Action No. 777-66; and

for the plaintiff in Action No. 784-66.

This is the trial of two consolidated péilenn: one ‘brought

by a group of railroads against the Brotherhood of Locomo-_

tive Firemen and Enginemen, and the other instituted by

the Brotherhood against a number of railroads. The second ,

action had'been filed originally in the United. States District,

Court for the Northern District of Dlinois, and on defend- |

ants’ motion was transferred here by Chief Judge Camp-. |

bell of the Illinois Federal Court. The two were then con-

solidated on motion of the plaintiffs in Action No. 777-66.

Tn each action a declaratory judgment and a permanent -

injunction are sought and a counterclaim is interposed for

reciprocal relief.

The basic issues to be determined are the effect and the

consequences of the termination of the effective period of

4 BB Award of a. compulsory arbitration proceeding: ‘concern-

~ ing two principal issues of a nationwide controversy be-

tween Class I railroads and organizations of railway em-

ployees. The differences in dispute were the need for con-

_tinued use of firemen on Diesel engines in. freight ‘and yard.

service, and the possibility. of reduction in the sizeof train’

crews on numerous runs throughout the country. The com-

pulsory arbitration.was directed by a Joint. Resolution of

Congress, approved August 28, 1963, 77 Stat. 132, in order

to prevent a threatened n tionwide railroad strike.

It was claimed by the carriers that: firemen were not

needed on Diesel engires in freight and yard service, as

there were no longer any fires to stoke and that whatever

other help was renderéd by-the yronen was in fact accorded

~ (i)

+ the engine.

— . !

| by ‘the head brakeman, whose ‘post was also. in the cab of

The Arbitration Board, known as Board 282, reached the :

conclusion that firemen were,no longer needed on Diesel

engines in freight and yafd service, except as to ten percent °

of the number, who it was held should be retained for un-

usual and extraordinary situations. In order to prevent * ie

. hardship and distress to thousands of employees, however,

the Award of the Board did not direct that ninety percent

of the firemen in question could be discharged forthwith,

but provided that the result should be accomplished only

by attrition ever the years, which would ease any possible

financial distress to the individuals concerned and to their

- families. Accordingly, it was prescribed by the Award that

all firemen who had at least ten years of service, should

retain their status until death, retirement, resignation, or >:

discharge for cause. The same right ‘was extended to fire-

men having between two and ten years of service; with the ~

qualification, however, that the carriers were to have the

privilege of offering comparable positions to firemen in z

- this class, for which they were qualified or could be made ,

‘ .qualified, with 4 guarantee of employment in the new posi-

tions for at least five years. Any moving expenses incurred

by the employees under these circumstances were to be

borné by the employer. If such an offer were declined by

the employee, he could be discharged upon the payment of

severance pay, the size of which was dependent upon the.

‘length of his service. The employment of firemen of Jess .

than two years’ service could be terminated upon the pay-

ment of severance allowances, again measured by the length

of service. . hippies °

In respect to-the proposed reduction of sizes of crews on

numerous trains, the Award formulated certain specific

considerations called ‘‘guidelines,’’ to govern the decision

as to whether the size of any specific crew should be reduced. -

1No question was raised as to the necessity of firemen.in passenger

service because the railroads did not dispute the need of having two |

men in the eab, and in passenger service it was not customary for a

brakeman to be stationed in the cab. :

. eee y eet, “ ¥ Dein en NOISE ASIEN PA BT OM PR tg ater rp oe open

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The issues as to particular crews were rempuded: to the. local

properties. for negotiations. If negotiations did not result

in an agreement, special boards-of adjustment | were to be

". ° ereated in the respective localities in order to resolve the

disputés.?

The consolidated actions now before the Court were tried

_ on the basis of a stipulation of facts, which the Court adopts

as its findings of fact. This opinion will constitute the

conclusions of law. ‘The issues in these. actions: involve

the provisions of the Award which relate to firemen. Simi-

lar questions affecting trainmen were determined in Akron

& Barberton Belt Railroad Co. et al. v. Brotherhood of Rail-

road Traimmen, et al., 250 F. Supp. 691. is

The Joint Resolution of August 28, 1963 provided that

the Award of the Arbitration: Board was not to become -

effective until sixty days after it was filed. The statute

- further directed that the Award was to. continue in force

for such period as the Board should determine, but not to:

.exceed two years from its effective date. The Board ordered

in the Award that it should continue for two years from its

effective date, unless the parties agreed otherwise. ‘The

expiration date of the Award was originally Jariuary*25,

1966. It was extended by agreement to March 31, 1966 as .

to the Brotherhood of Locomotive Firemen and Enginemen.

While the Award was in effect the railroads gradually ..

reduced the. number of firemen in their employ by about -

18,000, and paid separation allowances approximating about —

- $36,000,000 to firemen whose employment was .severed. —

. About 1200: employees accepted offers of other positions

under the provisions of the Award. —

As heretofore indicated the questions to be determined at

~ this time are the rights and.liabilities of the parties in

respect to firemen as to rates of pay, rules, and working

conditions after the expiration of the-effective period of the -

Award. It is claimed by the union, as-was also contended

‘the Award were summarized in Brotherhood of Locomotive Firemen

- and Enginemen v. Chicago, Burlington & Quincy Ry. Co., 225 F. Supp.

11; and in Akron & Barberton Belt Railroad Co. et al..v. Brotherhood of

| Railroad Freiamen, et al., 250 ¥. Supp. 691.

_. by the Brotherhood of Railroad Trainmeft. in the Akron &

: ‘Barberton case,. supra, that upon.,.the- termination of the.

effeetive period of the Award, the status quo that existed

prior to the Award was automatically restored. The Court

rejected this contention in the Akron & Barberton case, and

_ tions under it created a new status ‘in regard to rules and

_ working conditions. This status may not be changed, as we

’- explained in detail in the opinion of this Court in the Akron

‘case, except by agreement or by serving notices under Sec- »

tion 6 of the Railway Labor Act (45 U.S.C. § 151) and

exhausting, step by step, each of the remedies’ accorded

by that statute. Neither side may make changes unilaterally .

until the remedies under the Railway Labor Act are ex-

hausted. No recourse may be had to self-help until that stage

‘is reached, which means that so far as the firemen are con-

cerned, they may not resort to a strike, and any such strike

would be illegal.. ; a ee

Every statute must receive a reasonable and sensible

construction. Any interpretation that obviously fails to |

. effectuate the purpose and intent of the legislative body

should be. rejected. This doctrine applies not only to the

Joint Resolution of.Congress, but also to the Award of the

; arbitration board: The. Award manifestly contemplated the

eventual permanent abolition of the jobs of firemen on

Diesel engines in freight and yard service, except as to ten

percent of that- number, but proposed that the desired result.

should be reached gradually by a process ofvattrition. It

was not intended, therefore, that the steps taken during the

effective period of the Award should become a nullity at

the end of the two-year period. The purpose of the Congress

and the effect of the Award would be entirely frustrated if

the railroads were required to rehire firemen whose posi-

tions have been abolished during that interval. So, too, the

8 The reasons for this conclusions are summatized in detail in the Akron

ease, 250 F.Supp. 691, and need not be repeated here, ae Chali

4'The machinery provided by the Railway Labor Act for the settlement’

of labor disputes is also described in detail in the opinion in the Akron

case, stpra. ; jr Po,

here repédts that rejection® The Award and: the opera-—

vested rights of those firemen who were accorded perma-

nent protection by the Award, are not to be wiped out.

It is argued by counsel for the Brotherhood that since the

Award is at an end, whenever any firemen dies, retires, or

resigns thereafter his position should be filled by. a new

_ appointment. Such a course too would completely defeat the:

purpose and the meaning of the Award; for the objective of

the Award was to abrogate the use of unnecessai

ssary firemen,

but to accomplish this result by degrees and as far as pos-—

sible in a painless manner. © | ,

_ On the other hand, neither side may take any further

affirmative steps under the Award after its termination

date. Thus, the railroads may not discharge any more fire-

- meib pursuant to. the provisions. of the Award. What has.

been accomplished under the Award remains and is not to

‘ be nullified or wiped out The firemen with seniority of

more than’ ten years retain a*permanent status for their

working life, which was granted to them by the Award.

The firemen who accepted: comparable jobs with a guar-—

antee of five years’ employment, retain that guaranty. On

the-other hand, the carriers‘are under no obligation to fill

vacancies that had been caused by the separation of firemen

from their positions, or to fill future vacancies. Those posi-

tions are permanently abolished. .As héretofore stated,.a

new status has been created and no change may be made

, in that status except by agreement or by the service of ~

notices ynder Section 6 of the Railway Labor Act, and re-

course to the provisions of that statute. Tete peer

, A number of States have what are known as ‘‘full crew”’

laws, that require railroads operating within their borders -

to maintain crews of a certain specified minimum number?

The Supreme Court has recently held in Brotherhood of

Locomotive Engtheers v. Chicago, R. I. & Ps.R. Co.,:382°:

U.S. 423, that Award 282 did not-supersede these ‘‘fill .

crew’’ laws. The result is that in some States, the railroads

have not been able to achieve reductions in the number of

fireméh that they would have been permitted to make

under the Awar', if the ‘‘full crew’” laws had not inter-

fered. One of those States is Oregon, which has recently

: ' ; way

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pe ee ie 6

repealed its full crew law effective anuary 1p 1967.. It is

argued by counsel for the carriers that after January 1,

of the provisions of the Award to the extent of offering

. .. comparable jobs to firemen who had between two and ten

years’ standing, and discharging firemen of less than two

years’ standing. This Court disagrees. Since the effective

period of the Award has-expired,-no-affirmative-steps- may

be taken under it. The mere fact that State ‘statutes, as con-

strued by the Supreme Court, have prevented the railroads

in some instances from taking full advantage of the pro-

visions of the Award, does not have the effect of prolong-

ing or restoring their rights when the bar of the State,

statute is eliminated. The situation must be deemed frozen

as of the close of the effective period of the Award. This -

is entirely different from the converse ruling that no vacan- :

cies occurring by attrition’after the termination date need

be filled. In other words, there is no right or duty to take

_.any affirmative step under the Award on the part of either

. side after the crucial date. pees. re

As lias been indicated and as this Court held in the Akron

case, a new status was created by the Award and the activi-°

ties under it. This status prevailed as of the date of. the

termination of the effective period of the Award. The sole

and’ exclusive method of modifying it is either by agree:

~ment or by serving appropriate notices under Section 6 of

the Railway Labor Act and going through the various

steps by- way of negotiations, mediation, and the other pro-

° ceedings provided by the statute. In this.instance, three

such notices were served by the union during the effective -

period of the Award. As this Court held in the Akron

case, while notices might be served during that interval,

they did not become effective until the day after the termi-

nation of the effective period of the Award. In other words,. |

neither side was under any obligation to participate in

, any of the proceedings accorded by the Railway Labor Act, »

pursuant to such notices until after March 31, 1966.

‘Naturally, there are certain limitations on the types of

notices that may be served under Section 6 of the Act.

1967, the railroads should be permitted to take advantage * —

7 _ #

They must relate to issues concerning which the: party

that initiates them has a right to insist on negotiating. |

In other words, to use the terminology of the Labor law,

they must involve ‘‘bargainable issues’’, Elgin, J. é E. R.

Co.-v. Burley, 325 U.S. 711, 739-740. Second, so far as —

_ Award 282 is concerned, the employees may not in the

guise of serving notices under Section 6 of the Railway —

Labor Act, seek to abrogate or set aside the Award. It

must be borne in mind that the Award is the result of a

compulsory arbitration conducted under a mandate of Con- —

gress and has the stamp of judicial approval in the form

of a judgment in a proceeding to impeach it. Neither a

carrier, nor a union may institute proceedings, direetly or

indirectly, to set aside any provision of the Award, or the

operations or activities that have taken place under it or

the results that have been achieved. Collective bargaining

must be restricted to the future and may. not relate to

alleged past grievances, Elgin; J. d E.&. Co. v. Burley,

supra. |

This discussion brings us to a consideration of the three

notices served by the Brotherhood, which.are involved in.

these actions. By stipulation the effect and validity of .

Notice No. 3 weré withdrawn from disposition at this trial

and were reserved for later consideration. The Court will,

therefore, limit its decision in this respect to the first two

notices. Notice No. 1, dated November 15, 1965, proposes

that firemen taken from. the seniority ranks of firemen

shall be used on all locomotives on road and yard service,

with a few enumerated exceptions. It provides. further

that a ‘‘job’’ may be operated without a fireman only when

it becomes necessary to hire a fireman. Further it pro-

poses that the carriers should hire and place on the fire-

men’s seniority roster a sufficient’ number of firemen to

comply with the provisions of the notice. In other words,

this notice demands the restoration of firemen on those.

runs for which Award 282 expressly held firemen were

unnecessary. Obviously, compliance with this notice would

_ be a consent to abrogate and do away with the outcome of

the arbitration.

A \ ‘.

Notice No. 2, served at the same time, gogs even further.

It proposes that all employees :whose employment and

seniority were terminated under the Award of Arbitration

Board 282 should be recalled and restored to their seniority

roster and employed with their original seniority date and

used as firemen. It further proposes that individuals so

restored should be reimbursed for any monetary losses

- sustained by them as-a result of the termination of their

~ employment and for expenses that they may have in-

curred by way of travel, lodging and meals, etc., or as a .

result of sale of homes. This Notice uses the terms ‘“appli-

eation or misapplication’’ of the Award, and denominates

the termination of employment under, the Award as being.

‘‘improper’’. Manifestly, the use of “such phraseology is

not to be commended. The Board that rendered the Award

was created under*the law of the land and its Award has

_eventyated in a judgment of the Court. Irrespective of the

inappropriateness of the phraseology, the purpose ‘of. the

Notice is not only to set aside the.Award and to restore |

firemen whose employment has been lawfully terminated,

but in addition to provide for the payment of damages or |

- losses alleged tp have been sustained by them. Manifestly,

this is not permissible. The validity of the Award and of

any steps taken under it during its effective_period, are a

, obviously not ‘‘bargainable“tssues’’.

It follows hence that Notices 1.and 2 are not valid ile

Section 6 of the Railway Labor Act and that, consequently, .

there is no obligation, on the part of the carriers to enter .

into negotiations concerning the subject matter of these |

- Notices.. The union may not resort to unilateral action or.

have recourse to self-help in order to bring about the re-

_ sults sought by the Notices. In other words, any strike

- for that purpose would be illegal as in violation of the

Railway Labor Act and subject to injunction.

At the trial counsel for the union moved to dismiss the Ja

complaint as to three of the carriers and also as to the

railroads constituting the Southern Railway System, on

the ground that Award 282 was inapplicable to them. For

reasons ete at the trial and also discussed i in the opinion’

wy *

‘ denied.

of this Court in the Akron case, supra, the motion was

The union also reiterated its position that the Norris-

LaGuardia Act was applicable to any attempt to enjoin any

strike of railroad employees. For reasons fully stated by

this Court in its opinion in the Akron case, which it would

‘be surplusage to repeat, the Court holds that the Norris-

| follows :

C bie to an action or motion for

such an injunction or a temporary restraining order.

in conclusion this Court may summarize its rulings as

1. The termination of the two-year effective period of

the Award of: Arbitration Board 282 did not restore the

rates of pay, rules, and working conditions existing prior

to the enactment of the Joint Resolution of Congress of

_ August’ 28, 1963. On the contrary, the provisions of. the

Award and actions taken under it during its effective

period created a new- set of rules and working conditions as

of the date of its termination. Any attempt to change the 7

new status may be pursued only by serving appropriate

notices under Section 6 of the Railway Labor Act and in-

__voking the course of action in the various stages prescribed

_by that statute.

,2. Rights that have become vested as a result of the<op-

eration of the Award remain vested, and are not nullifiéd.

Thus, firemen having more than ten years’ seniority retain

the permanent status accorded to them by the Award until -

death, retirement or resignation. Firemen having a senior-

ity of two to ten years, who have accepted comparable jobs —

_ with a five year guarantee of employment retain that guar-

anty. Firemen whose employment has been severed and

who have received severance allowances, retain the money

that has been paid to them. The positions that have been ©

abolished as a result of the operations of the Award are

permanently abolished.

4. Whenever-any fireman who has a vested seniority

_. under the Award dies, retires, or resigns, the position that

he had filled is automatically abolished and consequently

‘no one need be designated to fill it.

ye ee aa

5. As no further steps may be taken under the Award

after the termination of its effective périod, the carriers

may not dispense with any more firémen pursuant to the

terms of the Award, or offer comparable jobs to:any of

‘them. The fact that ‘i in some instances the carriers. have ‘

been prevented by State ‘‘full crew’’-laws from severing

the employment “of some firemen in accordance with the -

Award, does not authorize the carriers to dispense with

them- or_offer-them- comparable jobs after the repeal of

any ‘‘full crew’’ law. Neder

6. Notices that were served. under Section 6-of the Rail-

way Labor Act, during the effective period of the Award,

although premature; are-nevertheless to be regarded as

having been legally ‘served and need not be served again.

They did not become effective, however, until the day after

the termination of the effective period of the Award and

there was no obligation on the part of either side to proceed

to conferences, negotiations, or mediations nree by the

Act until after that date.

1. Notices 1 and 2 served by the Brotherhood of Locomo-

tive Firemen and Enginemen purportedly under. Section 6

- of the Railway Labor Act are invalid in-that they do not

- relate to matter's subject to collective bargaining under the

statute, but are attempts to abrogate the provisions of the

Award of Arbitration Board 282, and in effect to restore

the situation as it existed on August 28, 1963 with a re-

_ imbursement for losses alleged to have been sustained by |

'” » firemen who have been discharged.. These notices being

illegal and ineffective, need not be complied with.

. §&. The Norris-LaGuardia Act does not apply to any

action or motion for a preliminary or permanent injunction,

' or restraining order against a-strike in violation of the

provisions of the Railway Labor Act.

9, Any strike of railroad employees called before the

_ exhaustion of all remedies provided by the Railway Labor

Act would be illegal. .

10. The prayer for a permanent injunction against a

strike is utiad granted. - . e

aes

Counsel may submit an appropriate judgment in ac-

cordance with the foregoing rulings.®

Aexanprr Ho.rzorr, |

: -United States District Judge.

May 9, 1966.

_-> Counsel for the Brotherhood of Locomotive Firemen and Engenemen, ©

shortly prior. to the trial of this action, filed a motion that the Judge

disqualify himself, and this motion was accompanied by a. so-called

“affidavit of bias and: prejudice”. The Court denied the motion and oyer-

ruled the affidavit. This action was based on two grounds: first, the

affidavit was not timely filed in that it was submitted after a number of

motions were heard and disposed of in this action; second, the affidavit

contained no showing that the Judge had any personal bias or, prejudice

against the Brotherhood, but merely that the Judge had made certain

rulings that were adverse to the Brotherhood. The fact that adverse

. Tulings are made. by a Judge is not a groynd for an affidavit of bias and

prejudise. It may be noted in passing that the affidavit ascribes to the

Judge a statement’ that the Court would not sug sponte take steps to

enforée the collection of the fine theretofore imposed, but this could be

done only on the motion of the carriers or of the Government.- This

statement was in fact made by the Judge from the bench in open court

in view of the fact that the fine was imposed for civil and not criminal

contempt. It was made during a hearing on some of the many motions

in this litigation. Obviously, this statement does not. establish personal

bias or prejudice, but quite the contrary. The authorities on these points

were thoroughly reviewed by Judge Sirica of this Court ir United States

v. Hanrahan, 248 F.Supp. 471, and by Judge Wilson of the Eastern

District of Tennessee, in United States v. Hoffa, 245 F.Supp. 772. This

Court refers to and agrees with the discussion of the law on this subject

in those two cases, and it would be surplusage to repeat it here.

omer = maid) senent

| APPENDIX B |

‘Appeals fronr-the United States District Court

. ° for the District of Columbia —

Decided May 12,1967 “

Mr. Milton Kramer was on the brief for appellants in |

Nos. 20,152, 20,229 and 20,249 and appellees in No. 20,172.

Mr. J ames D. Hill for appellant in No. 20,158 and appellee

in No. 20,191. a7 + % |

Mr. J oseph L. Rauh, Jr., with whom M essrs. John Silard,

Daniel H. Pollitt, Isaac N. Groner, David Epstem and

_ Stephen E. Moss, were on the brief for appellant in. Nos.

20,192 and 20,193 and ‘appellee. in Nos. 20,215 and 20,216.

Mr. Francis M. Shea, with whom Mr. Richard T. Conway .

was on the brief for appellants in Nos. 20,172, 20,191,

20,215 and 20,216 and appellees in Nos. 20;152, 20,158,

20,192, 20,193; 20,229 and 20,249. Messrs. David “Booth

Beers and Ralph J. Moore, Jr., also entered appearances

for appellants in ‘Nos. 20,215 and 20,216. t.

. Before DanaHER, Circuit Judge, Bastian, Senior Circuit

Judge, and Leventuat, Circuit Judge.

LzventHaL, Circisit Judge: * This opinion. deals with a

number of appeals and cross-appeals in the railroad work -

rules litigation. :

* It may help if at the outset we indicate generally the

- nature of our views, though their precise exposition and

the complexity of the issues require a long opinion. Part

I of this opinion reviews the history of the passage by

Congress in 1963‘ of a law providing for compulsory arbi-

tration of the work rules controversy with an Award of. -

two. years duration. In Part II we approve. the conclusion

of the District Court that the work rules in effect following .

the expiration of the Award in 1966 did not revert to the

1963 condition and that the new plateau of work rules,’

_ established for early 1966 by the Award, continued in

* As amended by Order of July 18, 1967.

effect unless changed in accordance with the Railway

- Labor Act. In Part III, reversing a ruling of the District.

Court, we hold that even prior to the expiration of the Award

the carriers had a statutory*duty to respond to notices

of the: unions and begin collective bargaining about the

rffles to become effective following the expiration of the

Award. In Part IV we conclude, reversing the District

Courts that the railroad companies violated their duty to

bargain with the Firemen, on the notice relating to pros-

pective work rules, and with the Trainmén. We affirm other

‘aspects of the decree, albeit for reasons somewhat different

from those of the District Court, since we conclude that

the railroads had no statutory duty to bargain over either

another: notice served by the Firemen, which sought to

undermine rights vested under the Award, or the early

‘notice served by the Conductors. |

‘

Understanding of the issues will be aided by a historical ;

review of the problem. ~ a

The phenomenal growth of railroads in the 19th cen- |

tury was accompanied by evolution of complementary em-

ployee organizations. Railroad workers were among the.

first to organize unions to present employee demands col-

‘lectively. The Order of Railway Conductors was founded -

in 1868, the Brotherhood of Railroad Firemen and Engine-

men in 1873, and the Brotherhood of Railroad Trainmen

in 1883. Labor relations in the railroad sphere has been —

the subject of Congressional enactments, and is now gov-

- erned essentially by the Railway Labor Act." sa

The last hundred years have also witnessed the evolu-

tion of an elaborate ‘‘common law’’ embracing the relations.

_ of railroad management and labor. There exists a roughly

defined system that is the product. of. long-established

practices amd understandings; collective bargaining agree-

ments, court decisions,and administrative orders. The sys-

tem covers among other things the, manning of trains and |

145 U.S.C. §§ 151-63 (1964), as amended, 45 U.S.C. § 153 (Supp. II,

1966). 7 ER ad 5

#2: a

the assignment of tasks to employees. These principles and

patterns of behavior are collectively denominated ‘‘work

rules.’?? As the Supreme Court has aptly put it, ‘the rail-

road industry with its complex of regulations is virtually

a ‘‘state within a state.”’"*> A ceis ata

Work rules concerning firemen date from the early days

of the industry. Their initial chore was to select and load

fuel into the wood-burning locomotive. The appearance

in the late 1920’s of the diesel engine spawned the prob-

lems that ‘beset the industry to this’ day. The carriers |

consistently contended that the former loaders of wood

were now merely. dead wood. Yet beginning in 1933 the

Brotherhood of Locomotive Firemen and Enginemen

(hereafter BLFE) negotiated individual agreements with

_various carriers to preserve the continued: status of fire-

men-helpers. The BLFE in 1937 joined with substantially

all United States carriers in signing the National Diesel.

\Agreement, providing for the employment -of firemen-

helpers on practically all diesel powered locomotives. Sim-

ar terms’ endured in subsequent contracts, includirfg the —

Diesel Agreement of 1950.:

_ © While work rules retaining positions for firemen became

- thus established, the industry’s quest for modernization

resulted in almost one hundred percent. diesel operation.

In 1956 the carries gave hint thaf intense competition

from other modes of transport and the resulting financial

-pressure would no longer permit preservation of the ancient:

’ status. During negotiations on, their proposal to give man-

. firemen the darriers withdrew this’ plan by agreeing to a.

agement ffie discretion to determine the employment of

three-year moratorium on.such changes in work rules. But

the.die had been cast, and the carriers argued that. the ver-

dict of history and technology had come in, pronouncing

railroad firemen extraneous members of ‘a train crew. So

too, they asserted, advanced technology and innovations

2 See generally ‘Comment, The Railway Work Rules Dispyte—A Prece-

dent for Compulsory Arbitration, 14 De Pavut L. Rev. 115 (1964). —

.% See Whitehouse v. Illinois Cent. R.R., 349. U.S. 366, 371 (1955),

quoted by Fortas, J., dissentizig in Transportation-Communieation Em-

ployees Union v. Union Pac. R.R., 385 U.S. 157, 176 n. 5 (1966).

‘ ‘ i . e~ . ge

would permit sharp reductions in the level of what is called

the ‘‘crew consist,’’ specifically the number of brakemen .

needed for the safe operation of the train. .

It is against the. backdrop of the always ‘sensitive and ane.

touchy problem’’* of overmanning and efforts to overcome .

it that we focus oni the events more immediately leading up

to these appeals. Jn 1959 the carriers served notices under

Section 6 of the Railway Labor Act,° proposing, the elimina-

tion of firemen from freight and yard service, and the abro- -

gation of.regulations fixing the size of train crews. The

following year, 1960,‘the unions served a series ‘of counter-

proposals directed at continuing and even extending the

use of firemen and at. setting the crew consist level at not

¢ less than one conductorand two brakemen plus such addi- - .

tional traininen as fhe assurance of maximum safety de-

manded. .

Shortly thereafter, in an effort to oii in the udiiestonat

of this dispute, President Hisenhower appointed a special :

. Presidential, Railroad Commission to. study ,the various, '

facets of the problem. This Commission issued its report

rand recommendations in 1962. In general | the carriers’

accepted the findihgs, but the unions balked. »,

Meanwhile, the lengthy” procedures contemplated and — a.

mandated*by the Railway Labor Act continued. Negotia-

_ tions and mediation failed to-bridge the gulf between the © oa

4 Brotherhood of ona a v. Chicago, Rock I. & Pac. R. R.,

382 U.S. 423, 430 (1966). ’

- 545 U.S.C. § 156 (1964) : Carriers and representatives of the employees a

shall give at least thirty days’ written notice of an intended change in

agreements affecting rates of -pay, rules, or working conditions, and the

time and place for the’ beginning of conference between the representa-

_ tives of the parties interested’ in such intended changes shall be agreed

upon within ‘ten days after the receipt of said notice, and said time shall a

-- be within the thirty days provided in the notige. In every case where such ©

notice of — change has been given, or conferences are being held

with reference thereto, ér the services of the Mediation Board have been

.” reqiiésted by either party, or said Board has proffered its ‘services, rates

of pay, rules, or working-. conditions shall not be altered by the carrier

» antil the controversy has been finally acted upon, as required by section

155 of this title, by the Mediation Board, unless a. period of ten days

has elapsed after, termination of conferences without: equa for or

proffer of the services of the Mediation Board. . oy

“ os LL OOO AEM AL AE LE ALA IA AE

= 16

parties. - The atmosphere of crisis heightened, for the Su- :

preme Court ruled in March of 1963 that all the tools of

the Act prescribed for the parties had been tried’and found

inadequate, and they were thus free to. resort to self-help :

that ‘is, the unions could lawfully strike, or the carriers

could unilaterally impose the new rules.®

The: last device in the statutory arsenal was invoked.

Acting under Section 10 of the Railway Labor Act, 45

U.S.C. § 160, the President, on a finding by the National :

Mediation: Board of the threat of deprivation of essential

transportation’ services, convened an Emergency Board

‘to make a prompt investigation and report. For’ thirty

days following the rendition of such a report no party may’

take ‘unilateral action. The investigation was made and

the report was filed.

Once’ again the unions proved unwilling to accede to the

recommendations of others. During July of, 1963 a flurry

of tense negotiations was spurred by the active interven-

tion of President Kennedy and the participation of Secre-

tary of Labor Wirtz. The unions rejected the President’s

’. proffer: of the services of Justice Arthur Goldberg as

_ arbitrator of the dispute.. For a fleeting period it appeared .

, that voluntary arbitration would provide the answer, but

_ _ though the parties indicated. willingness in: principle ‘they

could not get together in the Procedural particulars of

arbitration.

A strike was imminent. The country was faced with a

serious emergency. No outstanding techniques remained

to move the antagonists to a responsible accord. Only

Congress could avert a national; catastrophe, and it was

to Congress that President Kennedy turned for unprece-

.dented measures.’ The Administration proposal, submitted .

July.22, 1963, would have authorized the Interstate Com- .

‘merce Commissioh ‘to serve, in effect, as the agency or

compulsory settlement of the threat by empgprering it it to __

a 6 Brotherhood of Locomotive Engineers ¥ . Baltimore & O.-R:R., 372

‘U.S. 284, 290-91 (1963).

1 See Message from the President of the United States” Relative to ..

Railroad-Labor Dispute, H. R. Doe. No. 142, 88th Cong., 1st Sess. (1963).

. °S. J. Res. 102, ooh, 1 Cong., Ist: Sess. (1963).

. o. ’ i | . 17

, put into effect, on the application of the parties, any’ of

the changes proposed in the notices of 1959 and 1960 ¢ith ©

‘such. modification? as it found appropriate in reconciling

the private and public interest. That resolution made it

clear that these were to be only interim work rules to be

effective until the parties themselves agreed on more per-

“manent terms, but in- no event to last for more than two

years. - oe re

The law that was actually passed differed in various

particulars from the Administration measure. The ‘‘one

signifi¢ant change’’ ® made was the substitution of an inde- “”

pendent ad hoc board of arbitration for the Interstate

Commerce’ Commission, principally fore the reason that

Congress wanted to emphasize the peculiar and non-prec-

edential nature of its emergency intervention. By August

_ 28, 1963, this unique compulsory arbitration law, Public

Law 88-108, had passed both Houses of Congress and

received presidential approval. We set out this statute in,”

an appendix to this opinion. ° ‘ae Ae |

_ Public Law 88-108 expressly forbade any unilateral self-

help by the parties who had served or received the notices

of 1959 and 1960. It created, a Board of Arbitration (since

designated Board 282), to be composed of seven members,

two éach representing the carriers and unions, and the

other three to be selected by the President if, as happened,

‘the parties could not agree even on mutually acceptable

neutral members. The Board was ordered to pass on the

two focal issues of the use of firemen and the size and com-

position of train crews. The Award. (since designated

Award 282) was to ‘‘be binding og both the carrier and

organization parties to the disputp’ and . . : constitute a.

complete and final disposition of the aforesaid issues. .°. .”’

(Section 3). The effective date of the Award was set’ at

sixty. days after filing in the United States District Court

for the District of Columbja. According to Section 4 the

Award was to ‘‘continue in force for such period as the _

arbitration board shall determine in its ‘award, but not to

exceed two years from the date the award takes effect,

‘®Brotherhood of Locomotive Engineers v, Chicago, Rock-I. & Pac, . -

R.R., supra note 4, 382 U.S. at 432. - cs : ..

. unless the parties agree otherwise.’’?® It is this provision .

specifying the maximum mandatory duration that has_

sparked the issues we are. now required to judge. °

The Board met, held hearings, took evidence. It issued -

an Award that provided; ‘‘This Award shall continue in

force.for two years from the: date it takes: effect, unless

the parties agree otherwise.’’ An important extension

agreement is that of the carriers and BLFE, which ex-

tended the termination date to March 30, 1966. Except

for such agreement the Award expired at the close of the

two year period on January 24, 1966."

Award 282 held that the nearly, two hundred carriers

involved could eliminate ninety percent of the firemen ©

positions, and set forth a procedure for dismissal and‘

attrition. It was a staggering blow to the BLFE. The

Award did not, however, authorize a single spasmodic dis-

charge of thousands of firemen. Indeed, in some aspects.

it was ‘highly favorable to the employees, ?? see In re

Certain Carriers, Etc., 229 F. Supp. 259, 261 (D.D.C. 1964).

Thus the Award guaranteed permanent employment for

life, or until retirement or resignation, for every fireman

who had been in active service for more: than ten years,

10The measure was somewhat analogous to the legislative intervention |

in a 1916 rail dispute when Congress decreed that eight hours was to be

the measure for a standard day in determining compensation, and forbade

reduction in the standard day’s wage until thirty days after findings were

announced by a special commission created to study this system, to report

. back in six-to-nine months. The Supreme Court upheld this statute,

eharacterizing it as a form of compulsory arbitration that was “limited”

to a “reasonable period” fixed by the statute. See Wilson v. New, 243

US. 332, 345, 346, 351 (1917); Message from the President, supra

note 7, at 4-5; S. Rep. No. 459, 88th Cong., 1st Sess. 8 (1963); ‘

11 The parties and the District Court have all accepted and implemented

_ the Award as, effective January 25, 1964. With that date marking the

first day of the two-year period it is clear that the full two-year period

expired at the end of January 24, 1966. We see no valid basis for the

assumption of the District Judge that the Award was in existence on

January 25, 1966. It may be ‘regrettable, but we consider, the. Award

rendered on January 25, 1966, by a special board of adjustment with

respect to a dispute between BRT and the Green Bay & Western Railroad

Co. and. Kewanee, Green Bay & Western Railroad Co. to be without legal

significance, unless it has been adopted by poenals of the parties, a

question not before us.

with a comparable job insured for all with service of two

years or more. Those firemen with less than two years

seniority were accorded severance allowances, amounting

in some cases to six months pay. Under the terms of this

Award the carriers have pruned eighteen thousand fire-

‘men from their ranks, paid out some $36,000,000 in separa-

tion benefits, and providedscomparabie jobs ‘to twelve hun-

dred former firemen.

On the crew consist issue,.the: Board determined that

a single national standard would be inappropriate. It ruled

that no change in crew consist be made except pursuant,

to the Award. Then it provided that where existing work

rules required more or less than two trainmen, any party

might give notice of a proposed change. If after confer-

ences were held by the local properties no agreement was

forthcoming, the issue could.be referred to a special board

of adjustment created’ at the local level. The Award ar-

ticulated a series of ‘‘guidelines’’ to be followed by these

special boards in resolving particular disputes. Many crew

consist agreements and special awards were made under ©

this procedure. a

___ Pursuant to Section 9 of the Railway Labor Act, 45

U.S.C. § 159 (1964), as incorporated by reference in Section -

4 of Public Law 88-108, the unions sued in the District

Court for the District of Columbia to impeach the Award.

The attack was two-pronged. First, they contended that the

statute authorizing tompulsory arbitration in this context

was unconstitutional as‘beyond the power of Congress, or «

‘in 'the alternative as delegating power to an administrative

body without adequate specificity of standards. Second, the ~

unions argued that the Award did not conform to the

statute under which it cléimed vitality. The District Court

rejected both challenges, and both approved the statute and

confirmed the Award. Brotherhood of Locomotive Firemen

v. Chicago, B & Q. R.R.,-225 F.Supp. 11 (D.D.C. 1964). This

court affirmed,” 118 U.S.App.D.C. 100,.331 F.2d 1020, and

the Supreme Court denied certiorari, 377 U.S. 918 (1964).

In subsequent months there poured into the courts, here ©

12Qne judge dissented on the ground that the constitutional issues

should have been réferred to'a three-judge district court.

and elsewhere, a number of actions, some brought by unions

'.and some by railroads, presenting a plethora of particular-

problems,” but these skirmishes need not detain us. What

is critical to the situation now before us is this. Instead of

using the two-year period specified by Congress and the”

- Award to continue meaningful negotiations looking toward

long range adjustments of the various vexing problems,

guided by the experience gleaned from functioning under |

the Award’s interim rules, the parties apparently focused

on whether the expiration of the Award would leave them

in‘a better position. than they might achieve Jy return to

the collective bargaining table, where some concessions

might have to be made. ce ee ae

The positions adopted by the parties, distilled to their

essentials, were as follows: The Unions believed.that upon

expiration of Award 282, authorized by Congress as a

‘‘final’’ settlement for a period ‘‘not to exceed two years,’’

it would have no continuing, significance. - They’ assumed

that immediately upon the expiration, of the Award the

status quo ante would revive and the National Diesel

Agreements would once more control. This position was ~

shared by the other unions who presumed the prior crew

consist rules would, return from a two year consignment to

‘limbo. But as a hedge the unions also, during the effective

period of the Award, served notices proposing in substance

that on termination of the Award there would come into

effect rules that were substantially similar to the old work

“rules, with relatively minor adjustments. - | |.

Not surprisingly, the carriers took a different view. As

they saw it, the status created by Award 282 had an en-.

during quality that transcended the formal effective period

' 413 These actions were largely concerned with the proper construction

of the statute or award in fegard to individual fact situations. See, ¢.g.,

Brotherhood of Railroad Trainmen v. Certain Carriers, Ete., 12 U.S.

° App. D.C. 230, 349 F. 2d 207 (1965); Brotherhood of Railroad Trainmen

WV. Chieago,-M., St. P. & Pac. R.R., 120 U.S.App.D.C. 295, 345 F.2d 985

(1965); Atchison, T. & S.F.Ry: v. Brotherhood of Railroad Trainmen,

324 F.2d 899 (7th Cir. 1963); In re Certain Carriers, Ete., 231 F. Supp.

519 (D.D.C. 1964); Brotherhood of Railroad Trainmen v. Missouri Pac.

R.R., 230 F.Supp. 197 (E.D.Mo. 1964); In re Certain Carriers, Ete.,

229 F. Supp. 259 (D.D.C..1964). ae rate Sie

of that Award. But they too, ‘‘just in’case,’’ served coun-

ter-proposals on the unions to preserve. the benefits the ~

Award had carved for them. As. will appear in greater

detail, the carriers declined to discuss the merits of any ~~. ~~

of these notices at the few conferences that were held

prior to the termination of the Award, reasoning that |

_ although’ Public Law 88-108 and the Award permitted

bargaining during that period they nevertheless stopped

_ short of imposing a legal duty to do so. These are the two

central questions of these appeals: What rules were in

force the day after Award 282 expired? What was the

duty of the parties to bargain about changing those rulés,

and when did it arise? |

These appeals reach us from the orders disposing of

suits and counter-suits seeking declaratory ‘and injunctive

' . relief, brought by the carriers and by the Brotherhood of

Locomotive Firemen and Enginemen (BLFE), the Brother-

hood of Railroad Trainmen (BRT), and Switchmen’s —

Union of North American (SUNA), and the Order of

Railway. Conductors and Brakemen (ORCB). See generally

Bangor & A.R.R. v..Brotherhood of Locomotive Firemen,

253 F.Supp. 682 (D.D.C.'1966) (Nos. 20192, 20193, 20215,

and 20216); Akron & B. Belt. R.R. v. Brotherhood of Rail.

road Trainmen, 250 F.Supp. 691, 252 F.Supp. 207 (D.D.C..

1966) (Nos. 20152, 20172), supplemented, 254 F.Supp. 306

(D.D.C. 1966) (Nos. 20229, and 20249); Akron & B. ‘Belt

R.R. v. Order of Railway Conductors, 253 F. Supp. 538

(D.D.C. 1966) (Nos. 20158 and 20191)."

D> %

In advance of the trial of these cases, the parties con-

sented to the preliminary adjudication of: the effect of the

expiration of Award 282. In a guideline opinion underlying

subsequent rulings, the District Court held that, even

14 Appeal’ No. 20316, Brotherhood of Locomotive Firemen (and H. E. ~

Gilbert) v. Bangor & A.R.R., arises from an adjudication of contempt

for violating a temporary | vestraining order. Although it was argued

together with these cases, it presents different questions and is being

considered separately, See Bangor & A.R.R. v. Brotherhood of Locomotive

Firemen, 255 F. Supp: 476 D.D.C. _ .

_ 22

though the Award formally terminated, it had créated a

_ “new plateau”? of work.rules, which were to continue in,

force until changed pursuant-to-the regular procedures of

the Railway Labor Act." See Akron & B. Belt R.R. v.

. ...Brotherhood of Railroad Trainmen, 250°F'.Supp. 691, 695-

97 (D.D.C. 1966). |

The BLFE argues that the intention of Congress in

- giving the ‘Award a limited 2-year life.was to deny it any

‘further legal effect, to‘leave the parties as if the award

had never been in: existence, and to restore the status quo .

arite with the result that the day after the Award expired

the work rules in effect were the same as those in effect

when the statute was passed.. This approach has a kind

of formal logic, and certain provisions of Public Law 88-108

could be read this.-way. Our aproach in ascertaining ‘‘legis-

lative intent’’ is hampered by the fact that the possibility

that by the end of the formal duration of the Award the

parties might not have agreed on anything to take its place ©

is a subject on which the legislative history is, to use Justice

Harlan’s phrase, ‘‘essentially negative, which shows with

_ fair conclusiveness only that Congress was not squarely

faced with the problem this ease presents.’’’* In our case

there is the added consideration that Congfess was un-

doubtedly aware of the problem but apparently thought

wisdom lay in avoidance of express delineation.

We think the mere limitation of the effective period of

the Award neither implies nor compels the construction the

» unions seek. Our ruling is that the work rules created by

the Award constituted a new plateau that was not auto-

matically eroded when the Award expired. The legal under-

pinning for our ruling is not the Joint Resolution, which

expired after 180 days of life—except insofar as necessary

to sanction the Award. The ruling is not based on the

_ Award, which had only a 2-year life, or on any agreement

of the parties. The predicate of: our ruling * simply, the

16 Compare Manning v. American Airlines, Inc., 329 F. 2d 32, 34. ~

(2d. Cir. ), cert. denied, 379 U.S. 817 (1964). See alse Manning v.

American Airlines, Inc., 221 F. Supp. 301 (S.D.N.Y. 1963).

16 National Woodwork Mfrs. Ass’n v. NLRB, —— U.S. —-, —,

35 U.S.L.W. 4349, 4360 (U.S. April 17, 1967).

ip A NE

force of the Railway Labor Act. Certain work rules were

in force on January 24, 1966 (or March 30, 1966, in the

ease of the BLFE). The mandate of the Railway Labor

Act requires that the work rules in effect on any particular

day shall also be in effect the following day—beyond the |

power of either party-to institute a unilateral modification

, —subject to change only in accordance with the procedures

prescribed by the Act.. These procedures begin with the

- notices required by Section 6 to be served by any party

seeking a change at least thirty days in advance of the pro- -

posed effective date of such change. This new-plateau

reasoning applies even though the work rules are estab-

lished by agreements of limited duration. ‘‘The effect of

§6 is to prolong agreements subject to. its provisions re-

gardless of what they say as to termination.’’ " It likewise

applies even though the work rules are established by an

arbitration award of limited duration. iM,

This by no means suggests that there is no legal signifi-

cance in establishing an award or agreement as one of

limited duration. The limited duration has the obvious

significance that ‘work rules can be changed for the post-

expiration period. The work rules can be changed, however,

_ only by compliance with the provisions of the Railway

Labor Act prescribing how changes in work rules are to be

.effectuated. |

What we are in effect holding is, that since Public Law

88-108 is silent as to the applicable legal rule, the case is

governed by the combination of undeniable physical facts

plus the g’ eral legal rule of the Railway Labor Act. The.

BLFE is onstfained to find superseding intention in Pub-

Tie Law 68-108 which would in effect obliterate not only

* the Award as a document with legal effect but also the -

physical facts that came into being during the 2-year period. ©

We think its construction of Public Law 88-108 would be

. unreasonable and inconsistent with the purposes and con-

text of the legislation. It must have been reasonably con- _.

templated that the Board of Arbitration might order de-

flation of the scope of existing’overmanning. “And it seems.

obvious that an automatic rescinding of any such pruning at

17 Manning v. American Airlines, Ine., supra note 15, 329 F. 2d at 34.

the instant the Award was to terminate would spark the

most unsettling havoc. To reach this result would neces-

sarily mean trying to recreate a practically unrecoverable ©

‘situation and sweeping away a host of rights that had

already vested concomitant with the award, made final

under the Act, permitting reductions in the work force..

Such a view would also wipe out the supposedly permanent

guaranty of employment for those thousands of employees

_whose seniority, the Award decreed, entitled them to life-

time protections.

Sd ad 7 iit

We turn now to the question to what extent and by what

procedure the parties could and did lawfully invoke the

machinery prescribed by ‘the Railway Labor Act in order

to change, the work rules in effect on the railroads at th

expiration of the Award, rules that had been aoeadioon

by the Board (including the crew consist rules prescribed

% various local boards). /

As already stated, these work rules were not immutable.

Congress had enacted a compulsory arbitration measure of

_ limited duration. The appropriateness of a limited dura-

tion) for .a compulsory arbitration measure, articulated

by the Supreme Court 50 years ago in Wilson v. New,

_had beén emphasized by the President and Congress.’

_ When were the parties to bargain about possible changes

in the work rules that survived the Award? All parties

agree that negotiation during the pendency of Award 282

was permissible, but the carriers say it was not obliga-

tory. In our opinion, however, bargaining during the pen- -

dency of the Award 282 was not merely’ a matter for the

whim of the parties but was to be governed by provisions

of the Railway Labor Act, and these vectisisns remained

in effect during the life of the Award for purposes of

, regulating the responsibilities of the parties to bargain.

concerning changes proposed to become effective after the

expiration of the Award.

The principles and objectives underlying Public lek

88-108 reveal ‘that Congress placed a high premium on

the opportunity for continued —_— bargaining during |

18 "fee Note ep supra.

ALAR OEM ae

9 ? e

° . 4

ae = . a x>

«3 . ‘ :

: .

4 ~

25.

the life of the Award, in the hope and expectation, appar-

ently shared at that time by the parties themselves, that

the unions and carriers would themselves work out a long

range solution to thesé sensitive problems by the tradi- ~

tional devices of collective bargaining. This special statute

_ served to give the Nation a temporary respite from the .

threat of a disastrous national rail strike by forbidding —

for two years any unilateral changes or resort to self-help

: and imposing instead interim rules to cover the situation.

But as we have seen, both the statute and the Award ex-

pressly contemplated that the parties were free to alter or

_ extend the rules fixed ‘by Award.”

Public Law 88-108 established a procedure for formulat-

ing rules to govern for up to two years, in the absence

| of a negotiated pact. This did not displace the otherwise

applicable provisions. of the Railway Labor Act on. the.

duty to bargain on changes proposed to become effective

subsequent to the two-year period. President Kennedy in

his message to Congress expressed the desire that the

parties continue to confer on the ultimate resolution of

> their disputes.” A chief spokesman for the carriers, Mr.

J. E. Wolfe,” assured the Senate Committee that the car-

riers understood that the Administration’s bill ‘*imposes

a duty on the parties to attempt to settle their differences’’.

and would ‘‘protect the public interest as a result of the

establishment of these interim rules for a period of 2

_years or less while the parties undertake, through collec-

tive bargaining, to bring about a more permanent solution

of the problems.’’* We are aware that in the reshaping

of the measure the duty to bargain on the work rules was

not expressly spelled out, but the plan was surely retained. .

Indeed the preambles of both measures expressly and un- .

eS &

19 Indeed, on the crew consist issue, Section III.A(1) of ‘the Award

remanded the dispute to local properties “for negotiation”, and ory if

these further efforts to reach a settlement proved pointless were ‘special

boards of adjustment to be convened to fix the temporary rules. °

20 See Message from the President, supra note .7, at 6-8. .

- 21 Chairman of the a, Railway Labor Conference, an organiza-

tion ‘whose members conduct about ninety percent of all —— opera-

tions in the United States.

22 Hearings on S.J.Res. 102, Before the Senate C ‘omm. on Commerce,

. 88th ome Ist rae ser. 24, at 375 (1963).

“

26° ©

equivocally. proclaimed the care, taken to. select a sys-

tem which solved the immediate. emergency ‘‘in a man-

ner. which preserves and prefers solutions reached through |

- collective’ bargaining.’’ Changes were made by the Con-

gress—notably the substitution of an independent ad. hoc |

board for the Interstate Commerce Commission a’ .the

arbiter for the dispute. There was not a breath of a

_. suggestion, however, that Congress intended to remove

or even downgrade the policy that the parties themselves _

should confer in order to reach long-range solutions through

collective bargaining and agreement. . or

The carriers contend that all this means only that the

parties were free to bargain during the Award if they

wished, or even that they were encouraged to .do so, but

that for the two-year period the special act repealed

' pro tanto and by- implication the duty under the Railway

Labor Act to confer on proposed rule changes. We dis-

agree. In our view Public Law 88-108 was intended to

‘ work the minimum disruption of permanent railroad legis-_,

lation and normal collective bargaining. The only disrup-

tion wrought, the only ‘‘repeal by implication’’, was that

which necessarily accompanied the objective. of staving

off a’ cataclysmic strike by imposing a temporary settle-

ment. We detect.no glimmer. of an intimation that the

carriers were authorized to regard this as a two year hiatus

in their obligation to bargain. Rather, we find much to |

militate against such # construction. | |

It is notable that the parties to this dispute had already

agreed to submit their controversy to arbitration. They

stumbled over procedural details.. Congress viewed its

role primarily as draftsmen of the specifics of an arbitra-

tion agreement to which the carriers and unions had

already agreed in principle.* The statute in-Section 4,

28.The Supreme Court referred to this substitution as the only “sig-

nificant change” from, the Administration bill. Brotherhood of Locomo-

tive Engineers v. Chicago, Rock I. & Pac. R.R., supra note 4, 382 U.S. ©

at 432. am ' Sa

%4 See 8, Rep. No. 450, 88th Cong., 1st Sess. 9 (1963); H.R. Rep. No.

713, 88th Cong., 1st Sess, 12-13 (1963); Brotherhood of Locomotive

‘. Firemen v. Chicago, B. & Q. R.R., 225 F.Supp. 11, 18 (D.D.C.), afd,

- 418 U.S: App. D.C. 100, 331 F. 2d 1020, cert. denied, 377 U.S. 918 (1964).

AS SAA PICS LE AIOE ELE OL IMGIYAI LLL LE SAO RLE ALE LA EAT

Oe, .: aoe

the Award in Part IV, _and the reports of both congres-_

sional committees carefully specified that the effective np

tion of the Award was limited to no more than two years,

unless extended by stipulation, in order to restrict the —

‘“scope and. impact’’ of the statute.”

In essence then we have a.mechanism tantamount to an-

arbitration agreement, albeit one drafted by Congress, that.

confers on the arbitrator the power to imposé a settlement

binding for up to two years. It becomes appropriate, then, Lg

to consider what would have been the rights and duties of ay

_ the parties if they had themselves written the arbitration de

agreement. "We are not concerned .here with customary,” a!

adjudicatory or grievance arbitration. Although so-called

‘‘legislative’’-arbitration agreements are relatively infre-

quent they are not unknown. Under such agreements, pros-

pective rules and working conditions, instead of being de-

termined by agreement of the union and employer, as is cus-

, tomary, are determined by an arbitrator to whom the func; .

* tion is delegated.”* Such a determination by arbitration is

equivalent to a determination by agreement insofar as the |

. rights and duties of the parties concerning future modifica-

tion are concerned. An arbitration award does/not operate

to ‘‘prevent the [parties] from seeking through negotia-

tions under the.procedures provided for 7 the Railway

Labor Act or otherwise a new agreement . . covering the ©

TE..." :

Responsible conduct of ‘the process of collective bar-

_ gaining, for. consigeration. of proposals to modify work

rules established by an agreement or award of limited

duration, embraces conference and consultation prior to

the termination date. This is the way responsible busi- ©

nessmen deal with each other when they plan to continue

a business relationship—for example, in negotiating , ona .

contract or lease. before its expiration date, This is the

25§, Rep. No. 459, 88th Cong., Ist Sess. 10 (1963); see H.R, Rep.

No. 713, 88th Cong., Ist Sess. 14-15 (1963). -

28 See ELKOURI & amicus. How ARBITRATION Worxs 30:47 (rey. ed.

1068). ...

27 Sheehy, Ch.J., in Brotherhood of Railroad ao v. St. Louis

Sw. Ry., 220 F. Supp. 319, 326 (E.D. Tex. 1963).

e ») 28

way responsible employers. and unions implement the col-

lective bargaining process, and resfibnd to calls for change.

. And this is the- way railroads and railroad unions must .

respond under the mandate of the Railway Labor Act.

The purpose,of a Section 6 notice is:“‘to fix a proce

dure for the commencement of conferences ‘between rep-

resentatives of the two parties if changes are to.be made

in. the contract.’’® Wo‘rigid form for thesé notices is .

defined in the statute.”® All that is specified is thirty days .-

_written’ notice of a proposed change. The Act requires

that within ten days a time and place for conference be

’ set, and that the first conference be held within the 30-day

\ F . period.

~To’ recapitulate, .the Railway Labor: Act not only re- .—

quires railway employers and unions to confer and bargain

on work rules established by agreements or awards having

a fixed éxpiration date when one party wants to change -

the rules, but permits the statutory machinery to be in-

voked prior to expiration in order to seek an agreement

on changes to become effective on or after expiration.

Tf an agreement (or award). contains a fixed expiration —

date, rather than ‘the cémnion indefinite or automatic self-

renewal term, then the notice must indicate a’ proposed

effective date for changes that is not only at. least thirty

days after the notice, but also a time after the outstanding

agreement or award expires. Nothing in the Railway*Labor

Act, .or the scheme of Public’ Law 88-108, forbids service

of ‘a notice more than thirty days before the suggested

rules would or could be effective, and nothing relieves the

recipient from the duty to commence bargaining at that -

‘earlier stage. | 1 ca ee are

_ The carriers seek to buttress their claim of pro. tanto:

repeal by implication by arguing that it can hardly. be

supposed tliat Congress intended to permit. the unions to

ready themselves to strike on January 25, 1966. The. only -

forecast of that day we can find in the legislative history.

28 MeMullans v. Kansas, O. & G. Ry., 229 F.2d 50, 56 (0th Cir.),

cert. denied, 351 U.S. 918 (1956). Sel egies

29 See\ Detroit: & T.S.L.R.R. v. Brotherhood of Locomotive Firemen,

. 357 F. od 152, 153 (6th Cir. 1966). ‘ anil ;

Pr he es 99

- ences triggered by

is the assumption that it would be preceded by an: agree- -

ment of the parties. And that in turn, in our view, assumes . —

that responsible collective bargaining would have been in.

| _ train some time prior to the-expiration date. If we turn

.. from speculation about legislative intent to the ‘realities

of the Railway Labo Act, we are aware that the confer-

de ction 6 notices’ are typically the be-

ginning and not the end/of the statutory procedures. If

conferences proposed by a Section 6 notice are unavail-

-ing, either’ party can invoke the services of the National

Mediation Board. While negotiations continue or the

_ Board has jurisdiction, no self-help is permitted. The

parties are free to submit their controversy to arbitra- —

tion. If none of. these techniques resolves the matter, the

President may convene an emergency board to investigate ©

_the dispute and report back on the issues. Only when all

- these steps have been exhausted are. the parties permitted

te act unilaterally. ‘‘For the procedures of the Act are

purposefully long and drawn out, based on the hope. that

reason and practical considerations will provide i in time

an agreement that resolves the dispute.’’ *

We do not say that the time of service of notice is com-

pletely. irrelevant to the duties of the parties. ‘It may be.

that’ a notice served the day after the Award: would:

betoken bad faith to the point of vitiating its validity. We

shall have occasion to point out that certain union notices -

weré defective for analogous reasons. But thé mere fact

-that the. union notices were served prior to January 25,

1966, did not relieve the carriers of their duty to confer

and bargain prior to January 25, 1966. We are not con-

sidering a case where the railroads, while conceding that -

the unions had a right to begin bargaining prior to the

expiration date, responded that the particular notice came

too early, perhaps on the ground that it did not permit

» enough experience under the existing rules to spawn real-

istic and informed bargaining. In the case before us the

"carriers flatly refused to engage in any — bargain-

30 Brotherhood of Railway Clerks, v. Florida E. c. Ry., 384 U.S. 238,

» 246 (1966). See also Farmer, Compulsory Arbitration—A Management

— sacl §1 wa. L, Rev. 396, 401-02 (1965).

80 . d

ing whatever prior to the expiration date: Except inthe

case of objectionable union proposals discussed below, the

earriers before us must be held to have breached their

statutory duty under the Railway Labor Act to confer

and bargain on the merits of proposed changes in work.

rules. The decree of the District Court embodies .a con-

: trary declaration, and to that extent it is reversed.

' We now consider the effect of our reversal of the Dis-

trict Court’s ruling that the notices were not effective to

require negotiation until after termination of the Award.

As we have seen, conferences are but the first step in

the chain of Railway Labor Act procedures. ‘Once they -

“have been frustrated, one side to the dispute can move to.

the next tier of procedures, and indeed in at-least one —

series of éases involving parties: before us the National

_ Mediation Board has accepted jurisdiction of the contro-

versy. The carriers have foresaken their right to insist

- on conferences by their refusal to respect effective Section

6 notices. The standard for good faith bargaining is quite

liberal. Certainly it.does not compel agreement. Judge

Bryan, after the most careful analysis, formulated the

frequently quoted standard that the—

requirement of good faith bargaining is really a re-

quirement of absence of bad faith. In order to show

such lack of*good faith it is necessary to establish

facts from which it can be reasonably inferred that

a party enters upon a course of bargaining and pur-

sues it with. the desire or intent not to enter into an

. agreement at all. American Airlines, Inc. v. Air Line

Pilots read n, 169 F.Supp. 777, 794 (S.D.N.Y. 1958).

Applying ial a test, the carriers have breached their duty —

to enter negotiations in good faith, for a refugal to bargain -

on an erroneous premise ‘of law is no excuse.” :

31 See, e. 9. = " Coder of Railroad Telegraphers v. Chicago & Nw. Ry. be

362 U.S. 330 (1960). We do not°consider attempts to obtain new work

rules incompatible with those imposed by the Award or with the report

- of the Presidential Emergency Board reflective of bad faith on the part of

the unions. Compare Pullman Co. v. Order of ‘Railway Conductors, 316

. F.2d 556 (7th Cir.), cert. denied, 375 U.S. 820 (1963).

es]

Although the statutory duty to bargain continued during

the limited duration award, it was not unaffected by the

temporary statute and the arbitration award. Their

emanations do affect the conceptions of bargaining in good |

faith, pursuant to a. good faith notice, inherent in the

scheme of the Railway Labor Act. We shall develop our

specific. rulings by considering the three groups of unions

in chronological order by dates of notices.

A. ORDER OF Rariway Conpucrors AND BRAKEMEN (ORCB)

One group of cases before us, Nos..'20158 and: 20191,

__egoncerns the Order of Railway Conductors and Brakemen

(ORCB).22 On Monday March 23, 1965, that union, ex-

pressly relying on the provisions of the Railway Labor

Act, served notices on the carriers which proposed a rule

requiring not less than one conductor and two brakemen

on all classes of road train service thirty days after notice.

That date was, obviously, a full nine months prior to the

~ expiration date of the Award. The carriers considered

- the notices premature and refused to concede any obliga-

tion to bargain on-the merits of the proposals.* ORCB

invoked the ‘services of the National Mediation Board,

which docketed the case, but suspended action when the

District Court held the notices premature.

We think it manifest that the proposal to scrap the

- Award during its life time could be broached to the car-

riers to see if they were interested but could ‘not be pre-

sented to them as a subject. of bargaining that was man-

datory under a statutory obligation. We agree with Judge

Bryan’s approach that the collective bargaining system of

the Railway Labor Act subsumes and presupposes. a bar-

82 The District Opinion is reported: Akron & B. Belt R.R. v. Order of~

Railway Conductors, 253 F.Supp. 538 (D.D.C. 1966). :

38 The carriers lodged a further objection on the ground that the

‘ORCB is not the certified bargaining representative of most of the road

brakemen directly affected by the notices. Compare Southern Pac. Co.

v. Switchmen’s Union of North America, 356 F.2d 332, 335 -(9th Cir.

. 1965). The parties have stipulated this issue out of these proceedings.

AOE NRTA PEAT a Nee remnant men me tater Mle ant

gaining ‘tin good faith.’’ ** The issué of good faith i is inter-

laced with ‘‘bargainability’’—a term of art. which means

not only capable of being bargained but also a proper sub-

ject of mandatory bargaining. We have already held that

the carriers were in bad faith in asserting that they had

no legal obligation to bargain during the life of the Award.

They had an obligation, we think, to bargain about changes

to become effective with the expiration of the Award. But

we also think that they had no obligation to bargain about

a proposal to make changes during the life of the. Award.

‘Such an obligation would be inconsistent with an inherent

‘and essential element of Public Law 88- 108, which was

‘intended to promote long range solutions through collec-

tive bargaining by removing the need to bargain over

_ immediate crises.

The ORCB argues: that the carrier’s duty to bargain is

reaffirmed by Section ITI of the award of Board 282 which

directs the parties to resume local -negotiations on crew

_ consist. We agree that the unions could have called on the

carriers to negotiate pursuant to the Award. But this is

entirely different from the statutory duty imposed by Sec-

tion 6 of the Railway:Labor Act, upon which the union

“purported to rely. The Award machinery was essentially

different from and displaced the Railway Labor Act con-

cerning” rules effective during the life of the Award. This

is demonstrable from the provision of the Award that .

specified that if the parties were unable to arrive at an

agreement their dispute should be referred to a local-arbi-

tration tribunal. This is, of course, entirely different from _

and supersedes the basic structure of the Railway Labor

Act which provides for compulsory arbitration only for

minor disputes, and contemplates mediation or voluntary

arbitration. where agreement has not settled ‘‘major dis-

putes,’’ i.e. disputes relating to changes in rates of pay,

rules or working conditions.** In this context, we agree that

these notices were premature. —

. %4§ee American Airlines Ine. v. Air Line Pilots Ass’n, oP, 169

F. Supp. at 793-95.

8 See Elgin, J. & E. Ry. v. ‘Burley, 325 Us S. 711, 722-28 (1948).

33 ce an,

B. BroTHERHOOD oF RaILRoaD TRAINMEN (BRT)

In another group of cases (Nos. 20152, 20172, 20229

and 20249) we are concerned with me Brotherhood of

Railroad Trainmen (BRT).*

On June 30, 1965, BRT served a notice proposing ‘that

beginning January 26, 1966 (unquestionably after the

termination of the Award) a new work rule be inserted

in the agreements between the BRT and the carriers |

requiring that not less than two, or in some cases three,

brakemen be included in the “erew consist’’ of the carrier’s

runs. In most instances the carriers in turn served counter-

proposals with respect to crew consist rules, although they

took the formal position that the BRT notices were pre-

- mature and that during the life of the Award the only

proper procedure for instigating crew consist changes was

in accordance with Part A(3) of Section III of Award 282.7

The carriers’ denial of an obligation to bargain with

the BRT was essentially based on the contention of pre-’

.maturity which we have already considered and rejected.

We turn to the carriers’ current argument that Section

6 of the Railway Labor Act-cannot meaningfully impose

a duty to bargain during the life of the Award about

changes following its expiration, since this would undercut

bargaining nin Ba to the Award. concerning work rules

during the life of the Award. We see no inherent incon-

sistency such as we found in discussion of the ORCB

proposals. Bargaining and arbitration for rules to be in -

effect for a two-year period are not inherently negatived

by tandem bargaining. under a different system over long-

, & B. Belt R.R. v. Brotherhood =~ org 250 F.Supp: 691,,

252 F.Supp. 207, and 254 F. Sup! D.D.C. 1966).

The Switehmen’s Union of North groan (SUNA) is also a party in

Appeals 20152 and 20172..

87 “Kither party in interest shall give written notice of any proposed

change in any such stipulated number of trainmen. ... The time and

place for the ing of conferences between the representatives of

the parties in in t with respect to such proposed change or changes °

shall be ray upon within 10 days after the receipt of said notice,

and said time)shall be within 15 days after the receipt of said notice.”

36 These are appeals from judgments following the opinions in Akron

range rules. Conflict in scheduling might be a temporary

problem, but it could hardly dignify a complete denial of

_ a duty to bargain over the ultimate and dominant issues.

C. BrotrHerHoop or Locomotive Firemen AND ENGINE-

MEN (BLFE)

The third major group of cases, Nos. 20192; 20193, 20215

and 20216, involves the Brotherhood of Locomotive Fire-.

men and Enginemen (BLFE).*

In November 1965 this union served notices to take effect

at 12:01 a.m. on March 31, 1966, the day after the Award, .

as extended by stipulation, was to expire. There were three

notices, each made expressly pursuant to the Railway Labor

Act. Notice No. 1 related to the types of engine services —

on which the employnient of firemen would be’ required,

and would have pegged employment at a level of 6000 jobs .

below the terms of the National Diesel Agreement, but far

above the level provided by Award 282. Notice No. 2 pro-

vided for compensation to firemen who had been relocated,

severed, or otherwise disadvantaged by the operation of

Award 282. By stipulation of the parties we need. not here

msider Notice No. 3, which set out a training program

or apprentices. The carriers contended that all such notices .

were premature, and. further contended that the second

and third were not even proper subjects of colleetive bar-

gaining. Several abortive conferences were held, but the

carriers resisted any attempts to reach the merits of the

proposed rules. .

In the BLFE consolidated declaratory judgment actions,

the District Court agreed with the. carriers on the major —

points, holding Notices 1 and 2 not only premature but also

non-bargainable although the carriers had not even chal-

lenged the bargainability of the first notice. The court’s —

_ interjeetion seems not only to have provided an additional

reason for holding that the carriers had not violated a legal

a obligation in the past, but also to have prompted the car-

‘eo

48 These are appeals from judgments. following the opinion in Bangor

& A.R.R. v. Brotherhood of Locomotive Firemen, 253 F.Qypp. 682

(D.D.C. 1966).

riers to seek restriction of their obligation to bargain in

the future. :

. With the controversy thus éxpanded when there was. -

already uncertainty as to the exact legal «ights of the

parties, the issue became the suljject of a legal ruling. Since

the genie can not be put back into the bottle, we turn to

consideration of the soundness of the. determination by the

District Court, and we conclude that it was not a correct |

statement of applicable legal doctrine. ©

The District Court reasoned that— ‘

_ the employees may not in the guise of serving notices

under Section 6 of the Railway Labor Act, seek to

abrogate or set aside the Award. It must be borne in

mind that the Award is the result of a compulsory:

arbitration conducted under a mandate of Congress

and has the stamp of judicial approval in the form

of a judgment in a proceeding to impeach it. Neither

a carrier, nor a union may institute proceedings,

directly or indirectly, to set aside any provision of

the Award, or the operations or activities that have

taken’ place under it or the results that have been

achieved. :

Since these notices were found not to “‘relate to matters

subject to collective bargaining under the statute,’’ the

court declared that they ‘‘need.not be complied with.’’ 253

F.Supp. at 689. We disagree and are of the view that Con-

gress did not intend that either Public Law 88-108 or Award

282 would permanently ‘excise from the scope of collective

_ bargaining any proposals that otherwise would have been -

. lawful under the Railway Labor Act. Applying this stand-

ard, we find that Notice No. 1 falls within the realm of

proper collective bargaining, but Notice No. 2 does not.

We begin our reasons for reaching this conclusion with

a review of the principles surrounding disputes about ~

bargainability. The settled tradition under the Railway .

> '®Bangor & A.R.R. v. Brotherhood< of Locomotive Firemen, supra

note 38, 253 F. Supp. at 687. . =

Labor Act reveals a firm obligation on the railroads and

their employees to negotiate about changes in’ working

. conditions suggested by one side or the other. In the land-_

mark case of Virginian Ry. v. System Federation No. 40,

Railway Employees Dep’t, 300 U.S. 515,°548 (1937),*°

Justice Stone held that while the Act does not compel agree-

ment, it does demand those preliminary steps, triggered

by a Section 6 notice, without which no agreement could

be reached. The minimum requirements are that the em-

ployer at least meet with the union to listen. to its proposals

and to make a reasonable effort to achieve an accord.

‘The subjects for mandatory mutual consideration are de-

fined in Section 6 merely by reference to ‘‘rates of pay,

rules, or working conditions.’’ ** But the courts have rati-

fied the:practice of the industry so that the duty to bargain

‘‘generally has been considered to absorb and give statu-.

tory approval to the philosophy of bargaining as worked

out in the labor movement in the United States.’’ That is,

‘what carriers must legally bargain about is affected by

_. what is in fact bargained about in the railroad world. viel

_ The scope of bargainability is éxtremely. broad. The

- reeent guidepost opinion in Order of Railroad Telegraphers

v. Chicago & Nw. Ry., supra note 31, 362 U.S. at 338 (1960)~

states : Rha ee : ee tee

In an effort to prevent a disruption and stoppage of

interstate commerce, the trend of legislation affecting -

railroads and railroad employees has been to broaden,

not narrow, the scope of subjects about which work-

ers and railroads may or must negotiate and bargain

collectively. Furthermore, the whole idea of what is

bargainable has been greatly affected by the practices

and customs of the railroads and their employees them-

-4 Accord, Elgin, J. & E. Ry. v. Burley, supra note 35, 325 U.S: at

724-25 (1945).

‘41 See also 45 U.S.C. § 152, Seventh (1964).. co

. 4? Order of Railroad Telegraphers v. Railway Express Agency, Ine., .

321 U.S. 342, 346 (1944). st; :

. 48 United Indus, Workers of Seafarers Int'l: Union v. Board of Trustees

of Galveston Wharves, 351 F. 2d 183, 191 (5th Cir. 1965).

‘

a feats

. Selves. It is too late now to argue that employees can

have no collective voice to influence ‘railroads to act in

a way that will preserve the interests.of the employees

as well as the interests of the railroad. and the public

at large.“ ; hae ie Sages

The court upheld the right to-strike to ‘compel bargaining

' on a proposed work rule change to prevent the carrier from

abolishing positions in existence before a'certain date. The

court rejected the carrier’s contention that the proposal

was not part of a legitimate ‘‘labor dispute’’ because it

sought to perpetuate ‘‘wasteful’’ and ‘‘unneéessary’’ jobs.

The scope of. ‘‘work rules’’ discussed by railroads and

unions over the past century, including the use of firemen

and the manning of trains, has greatly exceeded what a

layman might expect the term to include. Bargaining in the

rail industry has comprehended fields frequently reserved

to management in other industrial contexts. Not until the

railroads began to experience the pressure of advancing

‘technology and vigorous competition from other modes of

F transportation after the Second World War was there any

suggestion that some questions of mutual interest might be

‘beyond the pale-of required bargaining. Increasingly, the ©

roads have come to use the. allegation of non-bargain-

ability, and have sought judicial rulings to protect man-

agerial discretion.“ Rarely have the courts sanctioned this

technique, and recent pronouncements do not augur well

for its encouragement...

This setting bids us be chary of the conclusion of the

District Court that there was no bargainability in Notice

No. 1 which proposed that for the future the parties. estab-

lish work rules different from those prescribed by the

44 Cf. Fibreboard Paper Prod. Corp. v. NLRB; 379 U.S. 203, 209-15

(1964). - : ,

*5 See H.R. Rep. No. 713, 88th Cong., 1st, Sess. 6 (1963) ; Comment,

The Railway Work Rules Dispute—A Precedent for Compulsory Arbitra-

tion, 14 De Pau L. Rev. 115, 119-20 (1964). Seé also Brotherhood of

‘Locomotive Engineers v. Chicago, Rock I. & Pac. R.R., supra note 4, °

382 U.S. at 429.

46 See the excellent ‘discussion in Weber, Public Policy and the Scope

of Collective Bargaining, 13 Las. L.J..49 (1962).

Award for a two-year period. The court stated that Notice

No. 1 ‘demands the restoration “of firemen on those runs

for which Award 282 expressly held firemen were ‘unneces-

. sary. Obviously, ‘compliance with. this notice would be a

consent to abrogate and do away with the outcome. of the

arbitration.’’ *" The District Court gave no clue as to how

in its opinion a Section 6 notice could validly propose

_ changes in the work rules established by the Award, by

_ what method, and to what extent. _

In our view its conclusion was erroneous. The crisis

conditionseof 1963 evoked an unusual response from Con-

gress, but one not intended to displace totally the frame-

work of labor relations law and practice in the field. The

phrasing of Public Law 88-108 and the reports that accom-

panied it make clear that Congress in its controlled re-

- 8ponse did not intend, to effect a permanent alteration in ©

development of collective bargaining. The preamble set. the

tone of the statute, declaring that ‘‘it is desirable to achieve’

[the protection of the national interest] in a manner which

preserves and prefers solutions’ reached through collective

bargaining. .. .”” According to Section 8, the statute expired

of its own terms one-hundred and eighty days after enact-

| . ment. The Award of the Arbitration Board, by ‘virtue of . i

‘ Section 4, could not “exceed two years from the date the

.. . award takes effect, unless the parties agree otherwise.’’

Section IV of the Award itself reiterated the limited dura- ;

- tion of the terms imposed and specified it would be in force

for two years ‘‘unless the parties agree otherwise.’’ .

_ _ This dual theme of limited survival and contractual free-

dom infuses a proper resolution of this case, and does so

with a spirit that is frustrated by the District Court ’s con-

clusions of non-bargainability. (andindeed of prematurity).

In providing in Section 3 of the law that the Award would

be ‘‘binding on both the carrier and organization parties’’

and constitute a ‘‘complete and final disposition’’ of the

major issues, Congress meant only that the Board’s con-

clusions were to have the status of arbitration awards in

the classic ‘sense, not merely of mediation suggestions or

“ Bangor & A.R.R. v. Brotherhood of Locomotive Firemen, supra °

note 38, 253 F. Supp. at 688.

~ pez.

39 |

fact-finding as in the ordinary major dispute under the Rail-

‘way Labor Act. But Congress contemplated and intended

that the parties could continue to work out a settlement

different from that imposed by the Board to be effective

for a limited two-year period. In submitting the Adminis-

tration draft to Congress, ‘*President Kennedy repeatedly

emphasizedsto the Congress his hope that the dispute could

eventually be settled by collective bargaining.’” Brother-

hood of Locomotive Engineers v. Chicago, Rock I. & Pac.

R.R., supra note 4, 382 U.S. at 431. The President ‘‘ex-

_ pressed no desire to have Congress pass a law that would

finally and completely dispose of the problem,’’ observing _

that it would be * ‘wholly inappropriate to make general —

and permanent changes in our labor relations statutes.

.-.””? Id. at 432. And the Congress ‘‘enacted the bill pro-

posed by the President’’ with but ‘‘one significant change’’

not relevant here. Ibid. ; Rg oe

Congress emphasized in unambiguous terms that the .

parties were not to be locked in by: the terms of the Award

on the firemen and crew consist issues:

- It should be especially noted that, although the joint ;

resolution provides for arbitration on these two issues,

>the parties may still bargain collectively on these

issues, and resolve them among themselves. This proc-

ess may take place before the arbitration board is.

established; after the board has initiated its proceed-

ings ; and may, also take placé after the board has made’

an award. By agreement, the parties may make the

appointment of the board unnecessary; may make the

decision of the board unnecessary ; and may supersede

the decision of .the board—all through collective bar-

gainmg. H.R. Rep. No. 713, 88th. Cong., 1st Sess. 13

- (1963). (Emphasis added.) Se,

We find it impossible to accommodate the operative lan-

guage and-animating philosophy of Public Law 88-108 with

the District Court’s holding that Notice No. 1 ‘was non- -

bargainable. The carriers argue now that the District Court |

did not foreclose all possibility of altering the rules im-

posed by the. Board, but meant only to vindicate its efforts

: 48 \. fiote, however, that apparently 6000 fewer firemen would ‘have

-been required under the- proposed: rulés than the National Diesel Agree- “

~_~

-by precluding return to the status quo ante. Even if we

‘agreed that the BLFE’s Notice-No. 1 would Have that

effect, nothing we detect forbids proposing just such a

‘complete regression. At least, we hold that under the Rail-

way Labor Act, and after taking into account such qualifica-

tion of that law as is fairly implied from Public Law 88-108,

‘ . the BLFE could legitimately require that the carriérs nego-

tiate. about thesé proposals for work rules to be operative

in the fature. ~- ree :

Rie Nothing’ compels the carriers to accede totally to changes

~.. proposed in Notice No. 1, and indeed in light of the realities _-

of. collective bargaining it is unlikely that the BLFE. ex-

pects to insist-on completé acéeptance of its suggestions.

But certainly there was no disability prohibiting the opener

. that the BLE. included-in its, first notice’ ye

Notice No. 2, however, falls itia-different category. It

did not propose. certain rule changes to govern the future -

-.* Operation of the. railroads. It was aimed directly and un-

_deniably at vitiating the Award of the Arbitration Board,

an Award that has long since received judicial confirmance -

‘-;_. and been. fully implemented by the parties. Although No-

tice No. 2 expressly refers to: Section 6 of the Railway

_ Labor Act, the notice on its face ‘demonstrates the irrele- .

~ vance of Section 6, and’ the “‘major disputes’” provisions *-

+ Of the.Railway Labor Act in general. ¥ a

_ » Notice No, 2: explicitly proposed: that ‘‘employees whose

. employment and ‘seniority were terminated by the applica-

tion.or misapplication of the Award of Arbitration Board

eu ‘ 282 will, on [the expiration of the Award as extended by

stipulation}, be recalled and restored to the seniority roster

» and employed with their original seniority date.and‘ used

¥ 88 firemen, (helpers). . .’?. In subsequent sections, the -

| ©. notice: proposed that employees terminated in the course -

' _.. of implementing~Award 282 be reimbursed for monetary

loss due to the termination and deprivation of seniority, in-

~~ eluding expenses incurred for meals, travel, lodging, and |

change of residence when relocating for other assignments.

¢. .- ‘ 7 . é ‘ 3 ni

“ment had provided. ~ - ©

a a oe

These proposals relate to alleged past grievances. ‘We

are concerned here with bargainability, and instinct in the

essence of collective bargaining is a notion of mutality,

that if a subject is brought up each side has-at least the

authority both to offer and to concede.. ‘ hace

. What is the status of the union concerning the subject

it proposed for bargaining’ in Notice No. 2? We turn to

‘Elgm, J. é E. Ry. v. Burley, supra note 35, 325 U.S. at

739: Sa

To settle for the future alone, without reference to

_or effect upon the past, is in fact to bargain -collec-

_ tively, that is, to make a collective agreement. That

authority is conferred independently. of the -power to

deal with grievances, as part of the power to contract

“‘concerning rates of pay, rules, or working ' condi-

tions.’’ It. includes the power to make a new agree-

ment settling for-the future a dispute concernirig the

coverage or meaning of a preexisting collective agree-

ment. For the collective bargaining’ power is not ex-

hausted by being once exercised; it covers changing

.. the terms of an existing agreement as well as making

one in the first place. aes

But it does not cover changing them with retro- .

active effects upon accrued rights or claims. For it:

is precisely the difference between making settlements °

effective only for the future and making them effective

retroactively to conclude rights claimed as having al-

ready accrued which marks the statutory boundary

- between collective bargaining and the settlement of

grievances. . an

The Court held that a union had no lawful authority to

- bargain for some of its members in settling claims they —

asserted against the rajlroad arising from the application

of new work rules. The court observed that the railroad

was not-entitled to assume from the union’s status ‘hs

bargaining agent-that it had the right to settle claims for - ©

past grievances, and that any agreements reached were

‘without legal significance.

whis analysis has an immediate bearing on our situation.

The BLFE proposed that the carriers jettison the rights

that had accrued to them under the Award, for the Notice

by its terms is limited to rehiring and reimbursing those

employees terminated in implementing Award 282. If

Award 282 meant anything it provided the sanction of

. Congress for the railroads’ authority to discharge thou-

sands of firemen. This permission. was sharply narrowed

' by stringent protective provisions under which severed .

employees have already received many millions of dol- |

lars in benefits. The rights to these payments vested when © ~

__ » thé employees were discharged: pursuant to the Award.

' The BLFE Notice proposed that tlie carriers renounce

. their vested rights. But. the bargainability of this subject

mattér as a proposal for a change in ‘‘work rules”’ is .

-undercut by the fact that the Elgin case squarely denies

the BLFE any %arrant in law to ‘‘bargain”’ over any pos-

sible concession”én the employee’s side to make a refund,

or even partial refund, of any severance benefits already

vested or paid, Clearly a proposal that cannot lawfully

be adopted is non-bargainable.*® Since the union could

. hot bargain away any part of the rights that accrued to

_employees under the Award, it could not compel the rail-

roads to bargain on a proposal that they surrender rights

_ that»accrued to the carriers under the Award, which de-

fined and limited the liability of the carriers arising from

changes made ‘in accordance with the Award. A

In Notice No. 2 the union* claimed there had been mis-

application of the award. As to this it suffices to point out

that Section 8 of the Railway Labor Act™ and Section’4 -

of Public Law 88-108 permit the union to bring forward,

questions of intérpretation as to the scope and applica- .

bility of the Award for resolution by Board 282.*1 But

these would not be comprehended by Section 6 of the Rail-

way Labor Act, governing proposed changes in work rules,

. See Southern Pac. Co. v.. Switchmen’s Union of North America,

supra note 33, 356 F. 2d at 334-35, 0 . . ;

5045 U.S.C. § 158(m) (1964): |

51 See Brotherhood of Railroad Trainmen v. Terminal R.R. Ass’n, ——

U.S.App.D.C. ——, — F.2d —— (No. 20135), decided this day.

2B,

° —< :

AEA LOREEN APL Wl

classified as major disputes.**. The rest of Notice No. 2 is

inherently an attack on the fairness of the Award—~and

that is not .bargainable under Section 6 consistently- with

the purpose of Public Law 88-108, and the Award there-

under and its judicial confirmance. ;

% * * ine. *-

_ It is our hope and contemplation that any further liti-

gation will be conducted with a fresh outlook. The halls

-of justice should not be an arena where gladiators are

spurred on in desperate combat. They provide a forum

where legal disputes can be settled, with a minimum of»

rancor, so as to further the Congressional . objective of

agreement and, if possible, harmony between carriers and

unions.* | } Seah

52 The BLFE contends in its brief that there is nothing wrong with

retroactive contract proposals and agreements, and suggests that they are

used frequently in industrial relations. Whatever may be the general

practice, and regardless of what other provisions of the Railway Labor

Act may require, there is no. duty to bargain collectiyely over the settle- -

ment of past grievances that is imposed by Section 6.

53 This court’s opinions in the instant cases will undoubtedly have bear-

_ ing on others arising in one way or other out of Award 282.

Before the present division are ten eases, Nos. 20152, 20158, 20172,

20191, 20192, 20193, 20215, 20216, 20229 and 20249. .

Before the instant division’ also is No. 20316, decided today.

Previously argued hefoye Judges Bastian, Burger and Wright are :

five cases, Nos. 19867, 20003, 20004, 20212 and 20213. .

Case No. 20135, decided today, came before Chief Judge Bazelon, Senior

Cireuit Judge Edgerton and Circuit J udge Coffin, (of the First Cireuit,

sitting by designation). ; ;

Hitherto in the, District Court, cases involving the railway work rules

‘disputes have been referred to a single District Judge. The fact that

we have differed from him in some aspects of relief granted or of -the

-basis of rulings should not be permitted to obscure our appreciation for

the prodigious effort he has made in response to so difficult an assign-

ment, and for the commendable manner in which he has approached so

. many novel and complex questions. * . ;

In today’s text we have undertaken definition of the basic legal princi-

ples applicable to future consideration of the issues. It would seem that

sound judicial administration of the District Court’s business will be

served by rotation of this assignment at this juncture. We have in mind

avoidance of further burdening of this District Judge and. the broad-

The parties are directed to submit within 10 days a

proposed judgment, and to confer and endeavor to agree -

| thereon. At that time the parties may also request supple- —

‘ mental rulings on any matters that have not been discussed

in this opinion. a Sine .

het , | Affirmed in patt,:

eet reversed in part.

‘ening of application of pertinent judicial expertise and exposure in

meeting our common.problems in this area. So it is that we have our-

selves achieved some distribution of the workload, and we regretfully

assume that there may yet beheavy demands on judicial manpower in

the District Court by reason of railroad work rules controversies.

a at cous ited D maieiguietiamnetoces cede Ravel at ae Aone = 0

AIRE ANB IEP EL LPL MLE ILENE POSTE OE NIN NEM

, 45

APPENDIX

E Public Law 88-108

_ Act or Avucusr 28, 1963, 77 Star. 132. «

Whereas the labor dispute: between the carriers repre-

sented by the Eastern, Western, and Southeastern Carriers’

Conference Committees and certain of their employees

represented by the Brotherlioofl of Locomotive Engineers,

Brotherhood of Locomotive Firemen and Enginemen, Order

of Railway Conductors and Brakemen, Brotherhood of Rail-

raad Trainmen, and the Switchmen’s Union of North Amer-

ica, labor organizations, threatens essential transportation

services*of the Nation; and wR ae

Whereas it is essential to the national interest, including ©

the national health and, defense, that essential transporta-

tion services be maintained ; and ;

Whereas all the procedures for resolving such dispute

provided for in the Railway Labor Act have been exhausted

and have not resulted in settlement of the dispute; and

Whereas the Congress find that emergency measures are

essential to security and continuity of transportation serv-

ices by such carriers; and © may ; ~

Whereas it is desirable to achieve the above objectives.

in a manner which preserves and prefers solutions reached

through collective bargaining ; and i

Whereas, on August 2, 1963, the Secretary of Labor - Das

mitted to the carrier and organization representatives cet

tain suggestions as.a basis of negotiation for disposition’.

of the fireman (helper) and crew consist issues in the dis-

_pute and thereupon through such negotiations tentative

agreement was reached with respect to portions of such

suggestions; and | | 3

"Whereas, on August 16, 1963, the carrier parties to the

dispute accepted and the organization parties to the dis-

pute accepted with certain reservations the Secretary of

Labor’s suggestion that the fireman ( helper) and crew

consist issues be resolyed by binding arbitration but the .

- said parties have been unable to agree upon the terms and |

procedures of an arbitration agreement: Therefore be it

Poe ei a ll

¢ %

aes ob

_ Resolved by the Senate and House ‘of Representatives

of the United States of America in Congress assembled,

That no carrier which served the notices of November 2,

1959, and no labor organization which received such noticés

or served the labor organization notices of September 7,

1960, shal? make any change except by agreement, ‘or pur-

suant to an arbitration award as hereinafter provided, in

- rates of pay, rules, or working conditions encompassed by —

any of such notices, or engage in any strike or lockout over

any dispute arising from any of such notices. Any action

heretofore taken which would be prohibited by the fore-

going sentence shall be forthwith rescinded and the status

existing immediately prior to such action restored.

_ ‘See. 2. There is hereby establighéd an arbitration board

“to consist of seven members. The representatives of. the

carrier and organization parties to the aforesaid dispute

. are hereby directed, respectively, within five days after the

. enactment hereof each to name two persons to serve as

members of sueh arbitration board. The four members thus

chosen shall select three additional members. The seven

members shall then elect a chairman. If the members

chosen by the parties shall fail to name one or more of the

additional three members within ten days, such additional

members shall be named by the President. If either party

fails to name a member or members to the arbitration |

board within the five days provided, the President. shall »

_ name such member or members in lieu of such party ad |

shall also name the additional three members necessary~

to constitute a board of seven members, all within ten days

after the date-of enactment of this joint resolution. Not-

’ withstanding any other provision of law, the National

. Mediation Board is authorized and directed: (1) to com-

pensate the arbitrators not named by the parties at a rate

not in excess of $100 for each day together with necessary

travel and subsistence expenses, and (2) to provide such

- Services and facilities as may be necessary and appropriate

in carrying outgthe purposes of this joint resolution. .

Sec. 3. Promptly upon the completion of the naming of

the arbitration board thé Secretary of Labor shall furnish

to the board and to the parties to the dispute copies of

his statement to the parties of August 2, 1963, ‘and the’

papers therewith submitted to the parties, together with

memorandums and such other data as the board may re-

quest setting forth the matters with respect to which the |

parties were in tentative agreement and the extent of dis-—

agreement with respect to matters on which the parties

were not. in tentative agreement.’ The arbitration board

shall make a decision, pursuant to the procedures herein-

after set forth, as to what disposition shall be made of

‘those portions of the carriers’ notices of November 2, 1959,

{dentified “as “Use. of Firemen (Helpers) on Other Than

Steam Power” and ‘‘Consist of Road and Yard Crews”’

and that portion of the organizations’ notices of September

7, 1960, identified as ‘‘Minimum Safe Crew Consist’’ and

| implementing proposals pertaining thereto. The arbitra-.

tion board shall incorporate in such decision any matters

on which it finds’ the parties were in agreement, shall re-

_' solve the matters on which the parties were not in agree-

ment, and shall, in making its award, give due considera-

tion to those matters on which the parties were in tentative

agreement. Such award shall be binding on both the carrier_

and erganization partiés to the dispute and shall constitute

a complete and final disposition of. the aforesaid issues

covered by the decision of the board of arbitration.

_ See, 4. To the extent: not inconsistent with this joint:

resolution the arbitration shall be conducted pursuant to

sections 7 and 8 of the Railway Labor Act, the board’s

award shall be made and filed as provided in said sections

_and shall-be subject to section 9 of said: Act. The United

States District Court for the District of Columbia is here-

- by designated as the court in which the award is to be

filed, and the arbitration board shall report to the National

Mediation Board in the same manner as arbitration boards

functioning pursuant to the Railway Labor Act. The award

shall continue in force for such period as the arbitration

‘board shall determine in its award, but not to exceed two. .

years from the date the award takes effect, unless the par- —

ties agree otherwise.

. See. 5. The arbitration board shall begin its hearings 7

thirty days enter the., enactment of this joint resolution -

48 ! e

or on such earlier date as the parties to the dispute and

the board may agree upon and shall make and file its award

not later than ninety days after the enactment of this joint

resolution: Provided, however, That said award shall not

become effective until sixty days after the filing of the

award. — idee

Sec. 6. The parties to the disputes arising from the

aforesaid notices shall immediately resume collective bar- .

gaining with respect, to all issues Yraised in the notices of - —

November 2, 1959, and September 7, 1960, not to be dis-

posed of by arbitration under section 3 of this joint resolu-

tion and shall exert every reasonable effort to resolve such —~

issues by agreement. The Secretary of Labor and the Na-

tional Mediation Board are hereby directed to give all

reasonable assistance to the parties and to engage in media-

tory action directed toward promoting such agreement.

‘See. 7. (a) In making any award under this joint reso-

lution the arbitration board established under section 2

shall give due consideration to the effect of the proposed

award upon adequate and safe transportation service to

the public and upon the interests of the carrier and em-

ployees affected, giving due consideration to the narrowing

of the areas of disagreement which has been accomplished

in bargaining and mediation. - . |

(by The obligations imposed by this joint resolution,

upon suit by the Attorney General, shall be enforcible

through such orders as may be necessary by any court of

‘the United States having jurisdiction of any of the parties.

‘See. 8. This joint resolution shall expire one hundred

and eighty days after the date of its enactment, except that

it shall remain in effect with respect to the last: sentence

of section 4 for the period prescribed in that-sentence.

Sec. 9. If any provision of this joint resolution or the

application thereof is held invalid, the remainder of this.

joint, resolution and the application of such provision to

other parties or in other circumstances not held invalid

shall not be affécted thereby.

ae Approved August 28, 1963.

APPENDIX ©

Appeals from the United States District.Court for the ~_

District of Columbia 4 .

Supplemental Opinion Filed July 31, 1967

Mr. Milton Kramer was on the brief: for appellants in

Nos. 20,152, 20,229 and 20,249 and appellees in No. 20,172.

Mr. James D. Hill for appellant in N 0. 20,158 and appellee

in No, 20,191. :

-. Mr, Joseph L. Rauh, Jr., with-whom M essrs. John Silard,

Daniel H. Pollitt, Isaac N. Groner, David Epstein and. ~

Stephen E. Moss, were on the brief for appellant in Nos.

20,192 and 20,193 and appellee in Nos. 20,215 and 20,216.

_Mr. Francis M. Shea, with whom Mr. Richard T. Conway

was on the brief for appellants in Nos. 20,172, 20,191, 20,215

and 20,216 and appellees in Nos. 20,152, 20,158, 20,192, 20,193;

20,229 and 20,249. Messrs. David Booth Beers and Ralph J.

‘Moore, Jr., also entered appearances for appellants in Nos. .

20,215 and 20,216. ,

Before Danauer, Circuit Judge, BastI1an, Senior Circuit

_ Judge, and Leventuat, Circuit Judge.

SUPPLEMENTAL OPINION

LeventuaL, Circuit Judge: On May 12, 1967, this court

released its opinion disposing of many of the legal ques-

tions arising from the railway work rules disputes and

the compulsory arbitration statute passed by Congress in

1963 to handle the controversies. Because of. the number

and complexity of the issues, we directed the parties to

confer in an effort to propose a judgment embodying our

rulings, and invited them to request supplemental rulings

on any points not explicitly covered by our opinion.

The parties have submitted nuni¢rous requests for sup-

plemental rulings, for reconsideration, and for clarification.

I The New Plateau Work Rules Continuing In Effect

“A. Brotherhood of Railroad Trainmen (BRT)

The carriers contend that our ‘‘new plateau’? rationale,

holding that the substantive terms effected by Award ne

* 282 continue in force after the formal expiration date of

the Award until. changed pursuant to the Railway Labor

' Act, logically requires reversal of the District Court’s

| ruling that the procedures established by Award 282 for

special arbitration awards.on the trainmen issue lapsed

at the termination of the Award. We disagree.

Our decision rests on an accommodation of the some-

times divergent directives of Public Law 88-108, Award

282, and the Railway Labor Act. Throughout, our touch-—

stone has been ‘our understanding of dominant Congres-

‘sional intention. We viewed Congressional intervention

in 1963 as reflecting a sensitivity to-the dangers of impos-

ing drastic changes on the pattern of railway. labor col-

lective bargaining.

The: point is simply this: We think Congress meant :

that changes 1 in substantive work rules issuing forth after

_ the expiration of Award 282 should not be wrought by the -

compulsory ediet of a board, but should either be reached

by agreement of the parties or should be born out of their

actions under the Railway Labor Act, an act which regu- ©

lates their conduct of bargaining so as to promote the

possibility of agreement, with the assistance of the Na-

tional Mediation Board or other special boards. .

This dominant Congressional intention. means that a.

‘difference’ must be drawn between those actions of Board

282 and its agents prior to the expiration date of Award

282 which effected changes in substantive work rules, and

those actions which merely constituted issuance of proce- .

dures for promulgating future changes i in substantive work

rules. The completed changes in substantive work rules:

continue on—unless and until changed again in accord-

“ance with. the Railway Labor Act. But there is no con- .

tinuance of what are. in effect only procedures for issuing

future changes in substantive work rules.

‘Those procedures constituted a special methanism for

making changes by award, and were intended to have only

‘ya two-year life. Upon the expiration. of the two-year

'.. period the special machinery was exhausted and in the

absence of agreement only the system of the Railway

Labor ‘Act was available for futare changes in substan-

tive work rules. Consequently, in. the absence of ratifica-

tion by agreement of the parties, a local adjustment board

had no independent legal authority that would permit it

to achieve an alteration in substantive work rules subse-

quent to the expiration of the two-year period. meer

* B. Brotherhood of Locomotive: Firemen and Enginemen *

(BLFE) . : : :

The parties are in disagreement as to the import for the .

Firemen of our ruling as tocthe Trainmen, a ruling an-:

nounced in our May 12 opinion and adhered to on recon-

sideration for the reasons noted above: | ae

On the firemen issue; Board 282 decided that most fire-

men could be dispensed with for other than steam power |

engines. It developed a procedure permitting the ‘‘blank-

_ ing’’.of firemen positions as follows: Each carrier could

list those engine crews’ on which it thought firemen un-

necessary for reasons of safety or workload. | These . posi-

tions could then be blanked, except that each local union

chairman was given the right within 30 days of receipt

of the carrier’s list to designate up to ten percent of these .

_ crews as requiring continued employment of firemen. The

Award refers to this right to designation as based upon

considerations of safety, undue work burden and adequate

* and safe service to the public, but provided that the desig-

_, nation shall not be subject to challenge or review. This

preeedure was designed to take place at three month

intervals. ee: 9 a aoe

A dispute arose when it came time to decide what hap-

pened. to this procedure, and the results it had reaped,

when Award 282 expired. : oi

The carriers insisted that when Award 282 expired the

_ procedures continued in effect as. part of the new plateau

- of work rules, and constituted a continuing mechanism for

reducing the employment: of firemen unless and until.

eo ees

Var aa: RnOodeat: ,

changed in accordance with Section 6 of the Railway Labor

gAct. The BLFE argued both that this procedure passed

out of existence when the Award terminated, and that the

- changes it had ‘effected lapsed, so ‘that pogitions blanked

during the life of the Award were resurrected.. The Dis-

| _ trict Court ruled that a’‘‘new plateau’? had been created

that preserved what had been accomplished by the car-

riers under the Award in reducing firemen’s positions, but

- held, that. the carriers could no longer. resort to the

machinery created by the Award to make further job cuts.

- The District Court concluded, however, that the carriers -

_ were prevented only from taking ‘‘affirmative acts’? in reli-

ance on the Award, but explained that this did not prevent

the carriers from refusing to fill vacancies resulting from

natural attrition. The underlying premise of that: court’s: —

- decision was that Award 282 superseded -the requirements

‘of the National Diesel Agreement which would otherwise

demand the-use of firemen on all locomotives.

As set forth in’ oar May 12 opinion, this court has

a rejected, though for somewhat different reasons, the con-

_ tention of the BLFE that after March 30, 1966, the status

quo ante compulsory -arbitration was automatically re-.

stored. While we explicitly ruled that the procedure

created by the Board for making new crew consist rules

expired when the Award did, we did not previously ex-

amine the problem presented in the firemen context.

The BLFE insists that there is no tenable. distinction ’

_ whereby firemen’ should be subject to continuing reduc-

tions under the Award though trainmen are not similarly

affected- The carriers concede that it is difficult to dis-

tinguish ‘the two situations, but suggest that the Award

might be viewed as merely setting forth a procedure for

crew consist changes but as directly affecting the firemen

._. Yules.

. Once again we find both parties somewhat out of align-

ment with our basic premises. We -have endeavored to

make it clear that nothing of the Award survived its

expiration date. It is the work rules resulting from the

- Award that endure, by virtue of the Railway Labor Act;

they are deemed to be incorporated into the prior agree-

- ments of the parties that themselves endure by virtue of the ,

PERILS SIRS Y RAS sl ee a ae IORI w . » <

a ca ea eI i Ai ila cerita lire i

‘ . r

A RR nnn

‘Subject to eliminatjon.”’” (p. 681) (Emphasis added). In’

re e

QO : “

‘,

\ *

, : ® ¢ —*

/ ©

Railway Labor Act unless and until changed’ in accord--

' ance with that statute. We must therefore discern what

“‘work rules’? were put into effect under and prior to the es

expiration of Award - 289. I |

The Award did not dispense with the useof firemen. It

began by continuing“in force all “‘agreements, rules, regu-

lations, interpretations, and’ practices, however estab-

lished,”’ except as modified by the Award. The Award

provided procedures whereby the carriers could mark

firenien jobs for extinction, and also established .a recipro-

cal power in the local BLFE chairman to immunize from.

elimination ten percent ofthe crews listed. The Opinion

of the Neutral Members of Board 282 makes abundantly

clear that the. Board recognized that the Award had the

effect only of sanctioning a procedure of limited duration ,

for accomplishing a reduction in crew consist and ‘the use

. of firenien. The Board explained that it was conscious |

that, the immediate. impact of the Award might be small,

but that this was a deliberate choice reflecting concern

for the human factor in the equation and the goal that

the Award would establish*gome principles that could con-

tribute to a final solution t8 the problems: :

The Board’s award will remain in force only two

years. Within that time the effect of attrition may be

such that the number of firemen or train crew jobs

actually. eliminated may be comparatively small.

Opinion of Neutral Members, 41 Las. Ars. 680, 681.

The Board members themselves characterized what they

did as having. “festablished a procedure for determining

whether, considering safety, workload, and adequacy of

transportation service, particular jobs should be made

explaining why the Award provided that the union could

insist on saving ten per cent of the jobs marked for elimina- .-

tion, the Neutral Members reasoned that: this procedure |

would obviate the possibility of objections, based on safety

or convenience, to individual proposals for job reduction.

The underlying premisesas explicated by the Board, was

that the Award would be able to authorize such reductions

54.

| | “a

only during two years, and/unless an efficient procedure ° |

were provided for making specific decisions ‘‘the likeli- :

* hood of reducing [the number of disputes over individual ‘

* jobs] significantly in a two-year period ‘would not be very

. .great.”’ (p. 690). Because of the two-year limitation on

the Award, the Board doubted that any standards it might

prescribe could be applied in particular disputes ‘ ‘in suffi-

cient time to yield any significant results.’’ (p. 690).

As the event turned out*the carriers used the Award’s .

procedures to terminate many. more firemen jobs than the

- Board predicted... The Neutral Members’ underestimate

, Mechanics for reduction in firemen jobs were procedures

of necessarily limited duration, rather than work rules

with continuing vitality. cae

_. Our conclusion is that the provisions in the Award for.

establishing new firemen levels did. not constitute ‘‘work

rules’’ in the classic sense,:as we have used and applied

that term, but instead are more accurately described as

procedures for establishing new work rules. The history

_ of labor.relations agreements in this industry reveals that

the manning work rules were expressed in terms of ulti- -

mate results, like one-conductor-and-three-brakemen, or

' firemen-required-on-all-freight-locomotives, and were not.

‘formulated.in terms of a methodological approach. This °°

. practical construction of the concept of work rules is Te- :

inforced by the Board’s expressions treating the mechanics

of lists and designations as procedures. Accordingly, for

purposes of determining what ‘‘work rules’’ were in force

on the last day of the life of Award 282, we do not con-

. 1In the course of Congressional’ testimony, Chairman Ralph Seward of

Board 282 And Assistant Secretary of Labor James Reynolds indicated

that their original expectation was that the procedures would lead to a

- reduction of about 5500 jobs, rather than the 18000 the carriers succeeded

in blanking. See Hearings on the Administration of Public Law 88-108

Before the Senate Comm. on Commerce, 89th Cong., 1st Sess., ser. 89-45

at 363-64, 465-66 (1965). And according to Senator McGee, the number

of firemen eliminated also exceeded the expectations of “Members of the

U.S. Senate.” Hearings on the Administration of Public Law 88-108

' Before the Senate Comm. on Commerce, 89th Cong}, 2d Sess., ser. 89-56,

at 1030 (1966). - % . aes

~ ALIFE EN PR eS on th ry

sider the procedures provided -by the Award for chang-

ing job: requirements as being themselves part of the sub-

stantive ‘‘work rules.’’ These procedures, like the pro-

cedures for changing substantive work rules for crew con-

-' sist of trainmen, had no effectiveness after the expiration . :

of the Award.

This construction “also gives what. we consider the

appropriate effect to the undeniably significant provisions

in Public Law 88-108 and Award 282 that limited the effec-

tiveness of the Award to two years. Since the Award did

not become effective for sixty days after filing, the parties

had more than two full years to plan its implementation.

The pre-existing work rules, contained in the National

Diesel Agreement of 1950, stipulated that ‘‘A fireman, or

a helper, taken from the seniority ranks of the firemen,

shall be employed on all focomotives.’’ ‘ Award 282 con-.

tinued this requirement (and any others stemming from

agreement or practice), until changed in accordance with

the Award. For two years plus, the carriers had the

machinery for proposing, at three month intervals, the:

crews that they thought could safely and efficiently dis-

pense with firemen positions. The. fruits of these notices

and negotiations, after adjustment for the Union’s ‘ten

percent retention, effected what must be re arded as-new ~

‘‘rules’”’ applicable to the particular runs involved. : But

when the Award expired, so did the procedures it sug-

‘gested. What survives is the complex of work rules in

force on. the last day prescribing the substantive terms

that controlled.the use of firemen on individual runs.

In consequence, a carrier is not only prevented* from

taking ‘‘affirmative acts’’ under the Award to reduce the

“use of firemen, as the District Court properly held, but

also, if the carrier was required to keep a fireman on. a

particular crew as. of the last day of the Award, it cannot

thereafter change the work rule by discontinuing that

position, except by agreement or in accordance with Sec-

tion 6. The work rule that continues in force provides

for a fireman on this crew, and that is not changed because

the particular fireman on duty dies or retires,

“Conversely, however, if the work rule in effect on the last

e 56

day of the Award provided that a fireman was not

required for a particular engine crew—because that crew

was included on the carrier’s list of proposed. blankable

' Jobs and the union’s local chairman did not designate it

for retention of a fireman, within the ten percent of crews

he could control—the work’ rule does not require a fireman

on that crew even though for one reason or another the

carrier had not removed. or transferred that fireman by

the end of. the effective period of the Award.? The carrier

may thereafter transfer him, or refuse to replace him

when he dies or retires. Such action would not constitute

- a change in work rules but simply an action in accordance

with the work rule in,force on the critical date, a rule

which provided that no fireman was required for that crew.

‘ The National Diesel. Agreement was not set aside by the -

‘Board. As.already-noted, the opening section of the Award

provided that. agreements in force continued in effect

_ exeept as they were modified by the Award. The Award

provided a procedure for méddifications during ‘the two-

year life of the Award. We recognize that it may be ~

turning back the clock to an era that two presidentjal

boards and the Neutral Members of Board 282 have agreed-

is technologically outdated, but: takitig into account the —

structure of Award 282 as issued, we see no alternative

to holding that any new runs created after Award 282 are -

subject to the National Diesel Agreement, and its require- .

ment of a fireman on each engine crew.

Moreover, the’ National Diesel Agreement is in effect —

even though the only reason why a-change in its work rule

was not made under’ the Award during its life time was the

fact that the change was blocked by a state’s full crew

law. The Supreme Court has expressly held that while

such state law was in effect the Board had no capacity to

make a change contrary“to its provisions. See Brother-

hood, of Locomotive Engineers v. Chicago, Rock I. & Pac.

R. R., 382 U.S. 423: (1966). The opening sections of the

| 3 The werk rules effectuating the pen made under the Award included

the ancillary protective provisions of Part II.C for individuals transferred:

or separated in implementing the change. an work rules continued in

Moet after the Award.

Pe PSST TR D SPOS NRCS MAP ER Ni OP

«3

Oo a

4°

Award dealing’ with the use of firemen and with crew

consists provided for the continuation of work rules, how-

- ever established, unless changed: pursuant to the Award.

The repeal of a full crew law subsequent to the expiration

of Award‘282 came after expiration of the Board’s author-

Award.

| IL Validity of Awards Made January 25, 1966.

In one respect we have decided to grant reconsideration —

and modify our opinion as requested by the carriers. In -

our opinion of May 12, we held that Award 282 was no

longer in existence on January 25, 1966, when a ‘special

adjustment board rendered crew consist awards’ between -

the BRT and two carriers, and that therefore these a@trds .

were without legal significance. — - ) oe

_ We rejected by implication the carriers’ argument in brief

that the BRT had stipulated to the contrary. On rehearing

the carriers point out decisions interpreting statutory pro-~

visions that an act be done within a specified period from

the date of another action or event so that the initial or

trigger date is excluded from the computation. As we were |

aware, that is of course the modern doctrine and is estab-

lished by the decisions of this court.among others.* It is:

the rule adopted by Rule 6 of the Federal Rules of Civil:

Procedure. -We thought this rule inapplicable because the

starting date did not involve problems of a fractional day,

and was. in turn’ detérmined by a still earlier computation |

_beginning with an initial date that was concededly excluded _

from computation. This:led us to the view that the two-year —

ity under the temporary statute and after expiration of.

the power of a carrier to ‘invoke the ‘procedures of the

period prescribed by the Act as the life of the Award did --

not extend beyond 731 full days (two years of 365 days each,

plus February 29, 1964), and that the Award which started

at 12:01 a.m. on January 25, 1964, should not be stretched ° _

to include the 732nd day of January 25, 1966... We felt that de

8 E.g., Freeman v. Pew, 61 App. D.C. 223,59 F. 2d 1037 (1932) ; Burnet

v. Willingham Loan & Trust Co., 282 U.S. 437, 439-40 (1931); Prince v. :

United States, 185 F. Supp. 269, 271-272 (E.D. Wis. 1960).

_ In the peculiar setting of this law that legislative considera °

tion should prevail over the customary formula for com-

puting time. _ eee Wes ates

_ On further reflection, we think that while this analysis

" may be sound for an appraisal-of the problem in the first

- instance, a doctrine not adverted to by the parties preempts

the question. There is hornbook learning to the effect that

where there is doubtful language in-a statute for perform- *

* ance of an act, the courts prefer that which’will confirm —

rather than destroy any bona fide transaction or fitle. 52

Am. Jur. Time § 18 (1944). - This is powerfully underscored

by the doctrine, highly relevant to modern needs, that where

_ Statutes have been entrusted to administrative agencies for _

unless plairily unreasonable or in conflict with the plain in-

tent of the legislature. _ ane ot

_. Board 282 was. keenly aware of the problems it faced

in possessing only temporary authority. It purposefully

selected a standard for the manning rule for firemen that °

. could practicably be administered within that limited time. —

When the special board assumed that it had the authority

to act on Janyary 25, 1966, it must be presumed to have

_ considered the question carefully and with a view to con-

forming to the intent of Congress as. nearly as ‘it could

discern that intent. | ae seen i

__» We note that the Union did not promptly protest the

~ awards as untimely. And further indication that even the _

Union regarded the time question as at least doubtful ap- we

_ pears from the fact that their notices used a J anuary 26, |

1966. date as the effective date for proposed changes. We.

acquiesce in the interpretation of this doubtful question by

_ the special board involved, since we cannot say this inter-

pretation was unreasonable or violated any plainly ascer--

tainable legislative intent. Accordingly we honor the

board’s conclusion that January 25, 1966 was the final day

of the Award, and hold that the special arbitration awards -

rendered on that date. were effective.

atiasioe: Ja

- TI Applicability of Section & of the Norris-La Guardia

| Act, + wo es

_ A. Brotherhood of Railroad Trainmen (BRT) -

‘ Appellant Union seeks a ruling that even, assuming the

District Court had jurisdiction to issue a restraining order,

_ the issuance of the order reflected error in this case.

‘We are clear that the District Court was correct in hold-

. ing that it had jurisdiction to enjoin a violation of the Rail-

way Labor Act, and that this jurisdiction was not negatived. -

by or subject to Section 4 of the Norris-La Guardia Act. ~

We affirmed that conclusion in ‘No. 20316, and fully adhere

to that ruling. . .

Although the District Court had jurisdiction to issue the .

restraining order we think it erred in doing so because—

as we subsequently held in our May 12,1967 ruling—the

complainant. carriers had-failed to comply. with their obli-

gations under’ the Railway Labor Act. Section 8 ‘of the

Norris-La Guardia Act, 29 U.S.C. § 108 (1964), provides

that a federal court shall not grant a restraining order. or

_ injunction in a labor dispute where the complainant ‘‘has

failed to.comply with any obligation imposed by law which |

is involved in the labor dispute in question.”’ i

The. issuance of the restraining order was conditioned on

"the carriers’ posting a bond to make good“damages, not to

" exceed $10,000, sustained by any party wrongfally restrained. .

We think the Union, which had to obey ‘the injunction or

suffer penalties for contempt of court, is entitled toa ruling

from this court that vacates an erroneous -determination of .

the District Court, although of course we do not purport to

describe what if anything the Union is entitled to collect

on the bond..

. The District Court erred in concluding that because it’

held, correctly, that the action was not subject to Section 4

of the Norris-La Guardia Act, which would. have ousted the |

court of jurisdiction, it necessarily followed that the “‘clean

. hands’? provision of Section 8 ofthe Norris-La Guardia Act

was likewise wholly inapplicable. The Supreme Court has

said, speaking through the Chief J ustice, that ‘‘there must.

_ be an accommodation’? of this Act with the Railway Labor.

—_—-4

eet tC! lees 4

- «

‘Act. Brotherhood of Railroad Trainmen v. Chicago R. &

Ind. R.R., 353 U.S. 30, 40 (1957). That principle of accom-

modation means that actions to enjoin violations of the Rail-

_ . way Labor Act may-be maintained without regard to Sec-. .

. tion 4 of the Norris-La Guardia Act, and yet be subject to

Section 8 of that Act. That is the conclusion of other courts:

' ‘which have considered the mattér,* and we agree. ‘ The point

is, simply, that Congress did contemplate actions to effec-

tudte the Railway-Labor Act by enjoining violations.® That |

- purpose would be utterly defeated if the federal court actions

involved were subject to Section 4 of the Norris-La Guardia

~ Qn the other hand a ruling that Section 8 of the Norris-

La Guardia Act is applicable to actions to enjoin violations

of the-Railway Labor Act would not trammel but would ..

rather further the effectuation of that Railway Labor Act,

for it ensures compliance by complainant carrier or union

‘ which cannot seek an injunction until and unless it has dis-_

charged the obligations imposed by the Railway. Labor. Act.

It may. be that in a’ particular case the District Court

might conclude that the imperatives of the Railway Labor |

Act override Section 8—a statutory focusing so to speak of

an equity approach whereby lack of clean hands may be’

overcome by a balancing of interests, particularly where

it is the public interest involved:. In a particular case the

District Court might conclude that the question of the appli-

-eability of Section 8 was. doubtful, would require. time to

explore, and that the restraining order should issue forth-_

‘-with to avoid. jeopardizing the Railway Labor Act. Such

de. pa Rand ‘Ry. v. Brotherhood of Sevinenibee Enp’rs, 307 F. 2d 21,

‘37-40 (2d

1962), cert. denied, 372 U.S. 954 (1963) ; Chicago, Rock I.

& Pac. R.R..v. Switchmen’s Union, 292 F.2d 61, 64-66 (2d Cir. 1961),

cert. denied, 370 U.S. 936 (1962); Elgin, J. & E. Ry. v. Brotherhood of

Railroad Trainmen; 302 F. 2d 540, 544-45 (7th Cir.), cert. denied, 371 U.S.

823 (1962) ; Manning v. ‘American Airlines, Ine., 221 F. Supp. 301, 304-06

_- (S:D. N.Y. 1963) ; cf. Brotherhood of Railroad ‘Trainmen v. Toledo P. &

-. W.R.R., 321 U.S. 50, 60-65 (1944); Brotherhood of Railway Clerks -v.. .

Florida E. C. Ry., 384 U.S. 238, 247 n.8 (1966) ; Brotherhood of Railroad

Carmen v. Chicago & Nyw.Ry., 354 F. 2d 786, 794-76 (8th Cir. 1965).:

’ 5 Virginian Ry. v. System Federation No. 40, 300 U.S. 515 (1937).

LESAN NELLIE YAAK LIEN OSE PINE RL 8g A RG ETOP

Act, which had provisions for withholding injunctions in ~ i

labor disputes reflecting entirely different objectives.

_ order.

approaches would “recognize that Section 8 of the Norris-

La Guardia Act has some applicability, and is a legislative

_ instruction that weighs heavier in the scale than the clean

_ hands doctrine taken merely as a general equity maxim,

om is overborne by requirements of the Railway Labor Act.

dere, however, the approach of-the District Court:was that

- Section 8 of the Norris-La Guardia Act was completely in- '

applicable and that was error. ‘In saying that the restrain-

ing order was erroneously entered, however, we do not

mean that would excuse a contemptuous violation.

We have said enough to demonstrate that ‘the’approach |

used: by the District Court was erroneous: As we have

decided, the complainants lack clean hands and the defend-

ants: were not threatening the violation. Therefore, we

- now rule that the District Court, taking all circumstances.

into consideration, should permit the Union to recover on

_ the $10,000 bond if indeed it can establish that it sustained

ascertainable damage from the issuance of the restraining

B. Order of Railway Conductors and Brakemen (ORCB)

This Union argues that, even assuming its notices of

March 23, 1965 were premature (as held in our May 12

_ opinion), the temporary restraining order against tlie strike

“was invalid because Section 8 of the Norris-La Guardia

Act prohibits the granting of. a restraining order to a com-

‘ plainant ‘‘who has failed to make every reasonable effort

to settle such dispute either by negotiation or with the aid—

of any available governmental machinery. of mediation or

_ 2 voluntary arbitration.’’

Neither the unclean hands doctrine, nor its crystallization

in Section 8 of the Norris-La Guardia Act, operates to deny

- relief to-a complainant merely because it has declined to

Short-circuit the plan envisaged by Congress for obtaining

a.durable resolution of vexing questions. Congress contem-

plated that the parties: would resume negotiation after they

had garnered experience from actually living with the rules:

decided. upon -by the arbitrators after .giving ‘due con-

sideration to the effect . . . upon adequate and safe trans-

portation service to the public and upon the interests of |

x ,

3 u ?

PearimeereeRnnenteie Fo vena peerenis

« 62 i. :

‘ the éarrier and employees.’? (See Section 7(a) of Public

Law 88-108.) The general requirement in Section 8 for

easonable efforts at negotiation does not contemplate a

departure from the assumptions of a specific statutory plan.

. Therefore, entry.of the restraining order was not improper.

The Unions,have assumed that a full decree will be entered

_* by this court.. We think the proper course is to remand for

the District Court to enter decrees in accordance with our

rulings.. We approve its approach on matters drawn into

‘question except as indicated in our opinions.* The various

judgments and decrees appealed from are accordingly .

vacated and the causes remanded for the entry of fresh

decrees not inconsistent with our opinions. we

= | So ordered.

® We affirm both the reasonin# and result-reached. by the District Court

in construing the effect of the’ agreements entered into between the BRT

and the Kansas City Southern Railway and Louisiane & Arkansas Railway,

and the Wichita Terminal Association. We agree that the correspondence

between the BRT and the Richmond, Fredericksburg & Potomac Railroad

constituted a crew consist agreément of the same duration as an award by

a special adjustment board.

We also approve the District Court’s holding that Sonthern Railway

Company and its subsidiaries were proper parties plaintiff in suits involving

the ORCB and were covered by_Award 282.

“hd ate ‘“s«. APPENDIX D |

Before: Dananer, Circuit Judge; Bastian, Senior Circuit.

- . Judge ;and Levenruat, Circuit J udge.

oO Ane _ Jupement |

, These causes came on for hearings on the records of the

District Court and the briets submitted by counsel, and

- were argued by counsel. sone pecs pbs,

* On May 12, 1967, this court filed an opinion in the above-

‘“. captioned ‘causes, and invited the parties to submit pro-

posed judgments: and. ‘to request supplemental rulings

within ten-days thereafter. ae a.

‘The railroads submitted proposed judgments, and re-

quests for supplemental’ rulings, and filed petitions for

rehearing. The unions also submitted proposed judgments

and requests for supplemental rulings, and filed opposi-

tions té the railroads’ petitions for rehearing. feos)

Upon consideration of the foregoing, it is.

., ORDERED AND Apsupcep by the Court that, except insofar

as they are granted in the supplemental opinion filed this

date, the aforesaid petitions for rehearing are denied; and

it.is . ane

¢ FurtuerAOrperep anp ADJUDGED by the Court that, inso-

far as reflected in the supplemental opinion filed this date, .

» . the requests for supplemental rulings are granted; and it is

rrek FurtHer OrperEp aNp ApJUDGED by the Court that these

cases are remanded to the District Court with directions

to vacate the orders and decrees appealed from herein dnd

enter orders and decrees consistent°with the opinion. of .

this Court filed May 12, 1967, and the supplemental opinion

filed this date. ~ | ;

Per Curiam.

*64 °

_ APPENDIX E ‘oat

' Before: Danauer, Cireuit Judge ; Bastian, Senior Cirenit

~_— and LEVENTHAL, Circuit Judge, in Chambers.

aa Sines AND OnvER

Brotherhood of Locomotive Firemen and Enginemen

(BLFE) in Nos. 20192 and 20193, and by the carriers,

Bangor and Aroostook Railroad- Co. et al, in ‘Nos. 20215

and 20216.

_ This court rendered an opinion in these cases, a others

consolidated therewith, on May 12, 1967, and filed a “-

plemental opiniop on July 31, 1967.

The carriers filed a petition for rehearing and davitie- ,

_ tion on August 15, 1967, and on August 25, the BLFE filed

a memorandum in opposition :to that petition.

The carriers assert, among other things, that this court’s

‘ opinion, and particularly its supplemental opinion, reflects.

a misunderstanding of the meaning and application of

q pga 282 intended by the Board of. Arbitration ( Board

282 :

This court has determined that Board 282 has continu-

ing vitality for deciding questions of interpretation as to

_ the scope and application of the Award. (Opinion of May

12, 1967, pp. 39-40.) - It has also made clear that even on

a question where the Board did ‘not have final authority,

accept the interpretation of the Board, even‘ though con-

trary to the interpretation the court would itself have

. rendered, so long as the Board’s interpretation was not

unreasonable or contrary to ascertainable legislative intent.

(Supplemental opinion of July 31, 1967, p. 15).

. MCcCoRDINGLY, now ‘upon consideration of the foregoing,

of this court’s opinions above ~ ae on the record

before the court,

It is OnpERED by the court that the carriers’ petition of

August 15, 1967 is denied, without prejudice however. to

the Board’s seeking leave within thirty days from the date

of this order to submit as amicus curiae a showing of

¥ .

ie. interpretation of the underlying statute, the court would P

* 282 as to the proper meaning and applicability of its award.

65 ie : iy

respects, if any there be, in: which the Opinions of this

court are inconsistent with the understanding of Board

Issuance of the mandate will be stayed for thirty days.

It is FurrHer Orperep that the court’s supplemental

opinion of July 31 be clarified by the addition of the follow- Ce

ing as a final paragraph of part I of the opinion (p. 13

of slip opinion). | anes aoe

“The carriers argue in effect that the Award at least

authorized the carriers to blank firemen positions during

the lifetime of. the Award, with this personnel action re-

maining in a state of suspended animation until its vitaliza-

tion upon repeal of the full crew law. The Court noted

in Rock Island, supra, 382 U.S. at 423:

Congress wanted to.do ag, little as possible in® solving -.

‘ the dispute which was. before it, and we note that

this dispute was not over the size of crews in States

which had full-crew laws. — :

The Board authorized the carriers to list jobs for blank-

ing, and thus provide @ classification ‘‘when and if such

full crew laws are amended or repealed.’’ Answer of May .

17, 1964, to Carriers’ Question No. 5 under Section IT—

Part B(1) ‘and B(2). But this conditional blanking was

only available as an advance procedure made fruitful if

the’ ‘necessary condition materialized during the 2-year

lifetime of the Award. See Opinion of- Neutral Members,

quoted supra, 41 LAB. ARB. at 681. The Board’s energy

was not limited to ‘‘the dispute which was before it [Con-

gress]’’ at the passage of the law, but also extended to

firemen* manning disputes arising during the critical 2-

year period. But the Board’s order and interpretations

cannot be stretched beyond the Congressional’ frame of

reference to resolve academic differences or disputes that

were neither in being at the time nor projected as arising

during the 2-year period.’’

So ordered.

. man and adopted rules of procedure. On September 23,

66 >

APPENDIX F

_ Awarp

This Award is made pursuant to Public Law 88-108, 88th

Congress, S.J. Res. 102, enacted August 28, 1963,

The organization parties to the dispute named H. E.

Gilbert and R. H. McDonald as organization members of

this Arbitration Board. The carrier parties to the dispute

named Guy W. Knight and J. E. Wolfe as carrier members

Ralph T. Seward were named as neutral members by, the

President. __ oe |

On September 11, 1963, the Board met, elected its Chair-

1963, in accordance with Section 3 of the Joint Resolution,

the Secretary of Labor furnished to the Board and to the

parties to the dispute copies of his statement to the parties

of August 2, 1963,.together with memorandums setting

forth his‘ understanding of the matters with respect to

which the parties were in tentative agreement and the

extent of disagreement with: respect to matters on which: __

the parties ‘were not-in tentative agreement. _ .

Public hearings were held in Washington, D. C., on

twenty-nine days between September 24 ‘and November 2,

1963, at which witnesses were heard, exhibits’ introduced

and arguments made. , Rebuttal exhibits and written argu-

ments were received on November 9, 1963. a.

On November 6 and 7, 1963, the neutral members of the

Board, with the agreement of the parties, visited certain

railroad yards in the Chicago area. The sole purpose of

these visits was to assist the neutral members in under-

standing the evidence and arguments presented at the

formal hearings and nothing said or shown to them during

- these visits was accepted as evidence.

During the course of. the proceedings, questions arose

as to whether -certain carriers ahd certain of their em-

' ployees were or properly should be parties to the dispute

and subject to the board’s jurisdiction. The carriers with

regard to which such questions arose were the Union Rail-

* road Company, the Florida East Coast’ Railway Company,

? .

eis

reer

proceedings required for such a determination, N othing

in this Award, however, and no action by the Board, in-

No. 1 or Employees’ Rebuttal] Exhibit No. 33, listing certain

carriers .as parties to the proceeding, ‘is intended to prej-

udice the position of any carrier or any organization as

ment, and has given due consideration to those

on which the parties were in tentative agreemént. Further, '

the Board has given due-consideration to the effect of the

a Award upon adequate and safe ‘transportation service

to the public and upon the interests of the carrier and em-

After a full consideration of the evidence and arguments.

and upon the entire record, the Board makes a complete

and final disposition of the issues submitted: and finds and

awards as follows. .

I. Dusposrrion or Section 6 Notices

Those portions of ‘the carriers’ notices of November 2,

1959, identified as ‘‘Use of Firemen (Helpers)-on Other -

Than Steam Power” and “Consist of Road and Yard

Crews’’ and that portion of the organizations’ notices of

September 7, 1960, identified as “‘Minimum Safe Crew

Consist’? and implementing proposals pertaining thereto

are denied, except to the extent hereinafter provided. °

1 NR RR EI FN ROIS ON

[td

“~

—., my

IT. Use - or FIREMEN (Hetrers) on Oren THan Steam

7 Power |

oer le 2 i, ~ Po

| Part A—Savine CLAUSE

A(1). All agr ements, rules, regulations, interpretations,

and practices, However established, with respect to’ the

employment of firemen (helpers) shall continue undis-_

‘turbed except as modified by the terms of this Award.

> Pane B—Repuctions 1x J OBS

B(1). Within’7 days following the effective date of this

_ \ Award, each carrier covered by this Award shall have the .

right to give to each local chairman of the organization

representing firemen (helpers) in each fireman (helper)

- seniority district a list of pool and regularly assigned

freight engine crews ( including pool and regularly assigned

crews used in mixed, miscellaneous, and unclassified serv-

-ices) and a list of regularly assigned yard engine crews

(including regularly assigned crews used in transfer, belt.

line, and miscellaneous yard services) then employed by

the carrier in each such seniority district. The two lists

judgment, based upon considerations of safety, undue work

burden, and adequate and safe transportation service to

the public, do not require the services of a fireman (helper).

B(2). Each local chairman, within 30 days of receipt of

the carrier’s lists, shall have the right, based upon con-

siderations of safety, undue work burden, and adequate

and safe transportation service to the public, to designate

the engine.crews in which the carrier shall be required to |

continued to use firemen (helpers) ; provided, that such

freight engine crews, nor more than 10 per cent of the -

yard engine crews, in any seniority district, as such crews

_ are listed by the carrier. Each local chairman’s designa-

tion of crews to be operated with firemen (helpers), made

as provided herein, shall be final and binding upon the

parties in interest and shall not ,be subject to challenge or

review; but prior conference shall be had between -the

parties in intérest with respect to the crews to be so desig-

DO ieee ee ee ee en ne

receipt of the said lists.

’ B(3). At~3-month intervals following the date of the

carrier’s original lists, the carrier shall give to each local -

B(4). Copies of all lists herein required to be furnished

~ - class‘of freight service (including all mixed, miscellaneous,

(including all transfer, belt line, and miscellaneous yard —

Services), other than in crews designated by the local chair-

man, pursuant to the provisions of paragraphs B(2) and :

le .

; 70

from the carrier’s payrolls and. have all of their employ-

ment and seniority rights and relations terminated, and in

such case shall be entitled to a lump sum separation allow-

ance in an amount to be determined as provided in Section

9 of thé Washington Job Protection Agreement of May

_. 21,1936.

C(3). Firemen (helpers) hired prior to a date 2 years

prior to the effective date of this Award whose average.

monthly earnings as firemen (helpers), hostler helpers,

hostlers, or engineers have not exceeded $200 during the

24 full calendar months preceding the effective date of

this Award, may be separated from the carrier’s payrolls

and have all of. their employment and seniority rights and

relations terminated with a severance allowance equal to

100 per cent of their earnings during the preceding 24

calendar months; or may elect to remain oh the senjority

lists of the carrier with rights to.such work as they are

qualified to perform, and which may be or become avail-

able to them, as provided in Part D of this Award.’

(4). Piremen (helpers) hired prior to a date 2 years

_ prior to the effective date of this Award, who have not

. performed service as an engineer or as a. fireman (helper)

since that date, may be separated from the carrier’s pay-

of the carrier, or to employees on appropriate leaves of

absence, or to discharged employees whose cases for re- __

instatement are pending, providing, if net-so situated, they

- could have met the minimum requirements of service or

. @arnings, - |

_ (6). All other firemen (helpers ) with less than 10 years’

Seniority on the effective date of this Award shall retain

their ‘rights to and obligations .to Protect engine service ;

assignments as provided by rules in effect on the day pre- —

ceding -the day this Award becomes effective, except as

man (helper), brakeman, or clerk In the same or another

Seniority district) for. which they are, or can become, quali-

fied.’ The offer of another job shall carry with it relocation

in Section 10 of the Washington Job Protection Agree-

ment of May 21, 1936, the continuation of accumulated _

seniority district must, within 3 days from receipt of

written notice, accept the job or all Of his employment and’

seniority rights and relations shall be terminated and, in

e'.

‘ ee

“ .

: . . .

°. ¥ a

° . . : e

that “event, he shall be entitled to one-half the severance

allowance provided for in paragraph 0(3) of this Award.

If such junior fireman (helper) shall fail to accept such .

job. and thereby terminates his employment as herein pro-

vided, the next most junior fireman (helper) on that same

' roster must accept the job within 3 days from receipt of:

written notice or forfeit all of his employment and seniority

rights and relations with the allowance provided for above.

. In each case of refusal to accept such job offer the next.

most junior fireman (helper) shall be required to accept,

as provided for above, or forfeit his employment and

seniority rights and relations with, in each case, the allow-

ance provided for above, until there are. no firemen

(helpers) with less than 10 years’ seniority remaining on

the seniority roster for the seniority district in which the -

job offer is located. - Thereafter, the samie procedure as

is provided above shallbe followed in the fireman (helper)

seniority district which has its principal extra list for

firémen (helpers). closest to the location of the job offered.

“ C{7). Firemen (helpers) with 10-or “more years of

seniority as of the effective date of this Award, who are

not separated from the earrier’s payrolls under the. pro-

visions of paragraphs C(3) or C(4) of this Award, shall .

retain their. rights to and obligations to protect engine

‘Service assignments as -prévided by rules ig ‘effect on the

day preceding the day this Award becomes effective, except

as modified by and subject to the provisions of Part D of

‘this Award, unless gnd until retired, discharged for cause,

‘or otherwise removed from the carrier’s active working ;

lists of firemen (helpers) by natural attrition,

Part D—Ricuts To: Work

D(1). Firemen (helpers) who elect to remain on the

seniority lists of the carrier as provided in paragraph C(3)

of this Award shall be entitled to exercis# their seniority

rights as firemen (helpers) to available employment in

engine crews. used in passenger service and in freight and

yard engine crews designated by thé local chairmen in .

‘their respective seniority districts as* provided in para-’

graphs B(2) and B(3) of this Award, as hostlers or hostlery.

73 a :

: , ; ‘ce , <7 ’ ‘ P trig Es ’

helpers, and-as engineers in any class of service for which

they are qualified; but such firemen (helpers) shall have :.

no rights to and shall not claim seniority rights to or. em-’

ployment in any other service.

D(2).' Firemen (helpers) who remain on the active work-

ing lists of the earrier under the provisions of paragraphs

C(6) and C(7) of this Award shall have the right to work... |

their turn as-firemen (helpers) sto the extent that positions

as_ firemen (helpers) are available in their respective

-Seniority districts on locomotives of the type to which.

_ firemen (helpers) were assigned and in.a class of .service

calling for the service of a fireman (helper) prior to the

' effective date of this Award; provided, that such firemen

(helpers) shall have no right to jobs that the carrier may

discontinue’ pursuant to the provisions» of this Award if

other employment in any class of engine service, for which |

they are qualified, is available to them in their respective

seniority districts, Such firemen (helpers) will have their

seniority rights, existing as of the, effective date, of this

* Award, for promotion in their turn, preserved.

. D(3). Extra lists shall be adjusted and firenien (help-—

ers) shall be furloughed and recalled pursuant to the pro-

visions of rules in effect-as of the day before the day this -

Award becomes effective, as modified by and subject to

the provisions. of: this Award ; provided, that. thé carrjer’ .

shall not be:required to use firemen (helpers) covered ‘by

-paragraph D(2) of this Award in freight or yard crews,

other than in crews designated by thé local chairmen pur-

suant to the provisions of paragraphs B(2) and B(3), if

the services of such ‘employees are requited on the extra

‘list to fill vacancies in crews or positions where firemen

' (helpers) must be used, as in. passenger service or under ~

the provisions of ‘this Award.

D(4). Firemen, (helpers) -retained in service ‘under the

‘eonditions set forth in Parts C: and D of this Award, when

assigned to the extra lists°for firemen (helpers), shall not

be called to fill vacancies in crews in freight and yard

service which have not been. designated by the local -chair-

men pursuant to the provisions ‘of paragraphs B(2) and

_B(3) of this Award if and-when their services are required’

to fill temporary vacancies’ as locomotive engineers, or

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temporary vacancies for firemen (helpers) in passenger

service, or temporary vacancies for firemen (helpers) in

_erews designated by: the local chairmen as provided in

Sic tis and B(3) of this Award.

Parr E—Continvine eee

B(1): Within 30 days following the effective date of

this Award, the ‘parties shall establish a National Joint

Board charged with responsibility for making an intensive

and continuing study of the experience in road freight and

' yard service with and without the employment of‘firemen .

‘(helpers) during the period that this Award remains‘ in

.,effect. During the 3-nionth period before the=date this

- Award. is due to expire, the Natiofial Joint Board shall

| prepare and. issue to the parties a report based on its study.

'-E(2). The National Joint Board established m para-

‘graph E(1) ‘shall-consist of 4 members, of whom 2 shall

be selected by the carriers, and one each by the Brother-

hood of Locomotive Firemen and Enginemen, and by the

Brotherhood, of Locomotive Engineers. The expenses of

the Board shall be borné by the participating parties.

III. Consist or Roap anp‘Yarp Crews (OTHER Tran Encine |

uarecy)

Parr A—Bastc ‘Provisions a

A(1). The issue of crew consist (other than engine serv- .

.ice) shall be remanded to the local properties for negotia® _

_ tion. , Pending ‘the consummation of local agreements dis-.

posing of the issue, the following provisions shall govern

. the use of trainmen (assistant conducters, ticke® collectors, .

baggagemen, brakemen, and / flagm®h) employed ‘in all

' classes of ‘road service, including all mistellaneous and .

se unclassified services, and the use of brakemen or helpers

- employed in all classes of yard, transfer, and belt line .

service, including all miscellaneous yard services. —

A(2). No change shall be made in the scope or applica-

tion of rules in effect immediately prior to the effective

date of this —~Award, whether established by agreement, ~

“interpretation, or practice, which require a stipulated num-

&4 a Seo &

ber of trainmen (assistant conductors, ticket collectors,

service, including all miscellaneous and unclassified serv-

ices, or which require a stipulated number of brakemen or

helpers in any class of

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